Agreeing on foreign holidays when you are a separated parent is often tricky, particularly if there are no Court orders in place, and you are the parent with a different surname to your children.
Below are our top tips for dealing with this situation – the first and most important thing to say is BE PREPARED. We advise all parents to undertake the necessary research and take the required legal advice before travelling; leaving things to the last minute or the week before you travel will undoubtedly make what should be a happy and exciting time pre-holiday, potentially very stressful.
Which travel documents will you need?
- Passport
- A sealed copy of any Court Order you have permitting you to travel alone
- A consent letter from the parent(s) or holders of parental responsibility not accompanying you
- Your child’s birth or adoption certificate
- Your marriage certificate or Decree Absolute if you were married to the non-accompanying parent but are no longer married
Legal considerations of international travel
All holders of Parental Responsibility (which will typically, but not always, include both parents) must consent to their child travelling abroad (outside of England and Wales). The exceptions to the rule are:
- Where the parent travelling has a “Lives With” Court Order in their favour (previously a Residence Order/Sole custody order), which permits them to take the child on holiday for up to 28 days without the consent of the other parent, OR
- Where the parent travelling has a Specific Issue Order, specifically permitting foreign travel
The UKVI (UK Visas and Immigration) are alert to the risk of child abduction (the unlawful removal of a child from their country of habitual residence) and also child trafficking. They will often check that the adult travelling has the appropriate consent, particularly if the child does not have the same surname. Further information may be found on the Government website.
The importance of parental consent
As mentioned above, in most situations, where both parents hold Parental Responsibility, they both must consent to a child travelling abroad.
The Child Abduction Act 1984 makes it a criminal offence for a person to send or take a child under the age of 16 outside of the UK without the appropriate consent, hence the importance of obtaining consent. Under the 1984 Act “the appropriate consent” in relation to a child, means the consent of:
- The child’s mother
- The child’s father if he has parental responsibility for the child
- Any guardian of the child
- Any special guardian of the child
- Any person named in a child arrangements order as a person with whom the child is able to live
- Any person who has custody of the child
You may also be in breach of international civil law if you remove a child from their country of habitual residence without the necessary consent.
What are some potential challenges you may face?
Whilst we can advise you on the relevant law and what is required to enable you to leave the UK with your child who does not share your surname, we cannot advise on the domestic law of the country to which you are travelling. There are some countries which have incredibly stringent requirements, such as requiring a parent travelling solo with a child to produce an affidavit from the other parent. It is crucial to obtain advice from local specialist family lawyers in the country to which you are travelling.
Our travel tips and best practices
The key things to consider when travelling with a child who has a different surname are:
- Check whether your airline has any specific requirements
- Check with your local embassy in the UK if there are any specific requirements
- Check with the embassy in the country you are travelling to if there are any specific requirements (and age limit for a minor, as it may not be the same as in England and Wales). This is particularly important as some countries have specific and strict requirements such as South Africa and the USA, thus although you may have the documents you need to leave the UK, you may not have what you need to be granted entry to the country you are travelling to
- Bring a sealed copy of any Court Order you have permitting you to travel alone and check with your solicitor if you need anything additional, such as to have your order apostilled
- Bring a consent letter from the parent(s) or holders of parental responsibility not accompanying you
- Bring the child’s birth or adoption certificate and if you have a different surname to the children, also bring your marriage certificate or Decree Absolute if you were married to the non-accompanying parent but are no longer married
For more information about international family law issues and the law in England and Wales, contact Jennifer Moore at jam@raydensolicitors.co.uk or telephone 01727 734260.
