With half term fast approaching many families may be planning to go on holiday with their children. But what about parents that are divorced or separated? Do they need permission from their former spouse or partner to take a child on holiday?
Whose permission is needed before taking a child abroad?
Whether a former spouse or partner’s permission is required to take a child out of England and Wales will depend on who has parental responsibility for the child and if there are any court orders in place. If both parents have parental responsibility, then neither may take the child abroad without the consent of the other unless:
- there is a Child Arrangements Order specifying that the child should live with one parent (in which case the parent in whose favour the order has been made may take the child abroad for a maximum of 28 days without the permission of the other unless there is a court order to the contrary); or
- there is an order from the court granting permission for the child to be taken abroad.
If neither of the above applies and a parent takes the child out of England and Wales without the consent of the other (or anyone else who may have parental responsibility) they are potentially committing the offence of child abduction.
Who has parental responsibility?
The child’s mother will automatically have parental responsibility from birth. The father will also have parental responsibility if one of the following apply:
- he was married to the mother at the time of the child’s birth;
- he marries the mother after the child has been born;
- is named on the birth certificate (from 1 December 2003);
- he has been granted parental responsibility by order of the court; or
- the mother and father (not being married to each other at the time of the child’s birth) have entered to a Parental Responsibility Agreement providing for the father to have parental responsibility for the child.
This means that it is not strictly necessary for a mother to obtain the consent of a father who does not have parental responsibility. Good parenting practice would, however, suggest that parents should try and agree any holidays in advance to avoid any unnecessary conflict between them.
What form should the consent for taking a child abroad consist of?
Whilst written consent is not strictly necessary, it is recommended that a letter is obtained from the former spouse or partner. This will evidence the consent and may be asked for at foreign borders or when leaving the country.
It is recommended that the letter include information relating to the holiday and the contact details of the consenting parent.
What if a former spouse or partner with parental responsibility does not agree with a child being taken abroad?
If one parent will not consent to the other taking the child abroad, the parent seeking to do so must apply to the court for a specific issue order. The court will consider whether the holiday is in the best interests of the child in question when deciding whether to grant permission.
What if a former spouse or partner wants to prevent the other parent from taking the child abroad?
As above, where consent of the other parent is required, the fact that it is not provided means that the other parent cannot lawfully remove the child from the country without a court order. The onus is therefore on the parent seeking the holiday to obtain leave of the court. However, if a parent believes that the other parent is going to take the child abroad without their consent, they can apply to the court for a prohibited steps order. If there is any concern that the child will not be returned from the holiday it is important that the application is made as quickly as possible to ensure that the risk of child abduction is minimised.
What is the situation for holidays within England and Wales?
The same situation does not apply for holidays in England and Wales. Permission is not required provided that the holiday falls within any contact schedule or arrangements which have already been agreed. If, however, the holiday will require an amendment to the contact schedule it is important that the parents agree to the change.
If parents are unable to agree to the change of schedule, an application for a specific issue order will need to be made to the court.