What you need to know
In case the boxes of mince pies and packs of holiday cards have not yet tipped you off, the festive holidays are just around the corner. For many families, the arrangements to squeeze in time with family and friends can be complex and result in a rather frenetic December. For separated parents hoping to travel with their children across international borders, there are additional considerations to be thought through before travel plans can be made.
First things first: do you have parental responsibility?
Parents with parental responsibility can agree that one or other of them may take the child or children (under the age of 16) abroad. Travelling abroad without the consent of all parties with parental responsibility can constitute child abduction, so it is important that you are clear on your rights to travel alone with the child or children before leaving.
The Children Act defines parental responsibility as all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property. A mother will automatically have parental responsibility but it is less straightforward for fathers. Further information on whether a father has parental responsibility can be found here.
If the other parent won’t consent to you taking the child away from the UK, then you will have to ask permission from the court by making a court application. See below.
What if there is a Child Arrangements Order in place and your child lives with you?
If there is a Child Arrangements Order in place regulating when and with whom your child lives (formerly a residence order), the parent named in the order as the parent with whom the child shall live can travel outside the UK for a period of less than one month without the consent of the other, as set out in the Children Act.
If the proposed trip is for one month or longer, the parent with whom the child lives will need the written consent of everyone who has parental responsibility for the child, or a further order of the court. Make sure any written consent is unequivocal so that there can be no dispute as to what was agreed.
What if you are planning a series of short trips outside the UK over December to January, travelling for 32 days in total?
There is no upper limit on the number of trips abroad you can make with your child which are of less than one month in duration if there is a Child Arrangements Order in place regulating where and with whom your child lives, and they live with you. However, be aware that the other parent may object as frequent travel may limit the time that your child has to spend with them and may not be in their best interests if it interrupts their schooling or time with wider family members.
What if there is no Child Arrangements Order in place regulating where and with whom your child lives?
If there is no court order in place regulating where and with whom the child shall live, then you must obtain the consent of:
- the father (unless of course the father is planning the trip), whether or not he has parental responsibility, as well as
- the consent of everyone with parental responsibility (including the mother where relevant).
As above, the consent should be in writing from all the relevant parties, to avoid any disputes arising further down the line.
What if there is a Child Arrangements Order and your child lives with your ex?
Unless specific provision has already been made in the Child Arrangement Order (or another order of the court) for this trip abroad, written and clear consent must be sought from all those with parental responsibility even if the trip is for under one month. Time permitting, mediation can be an effective forum in which to discuss plans with each other with the assistance of a neutral third party, in the hope of reaching an agreement.
What if the other parent does not consent?
Whilst it is always preferable for an agreement to be reached, not least because co-operative decision making by separated parents provides a secure family foundation for your child, it is not always possible and an application to the court may be the only way to resolve the issue. Regardless of whether or not there is a Child Arrangement Order in place, either parent can apply to the court for a Specific Issue Order, allowing them to travel outside the UK with the child to a specific place for a specific period of time.
Where the trip is opposed by one parent, and there are concerns that the other parent will travel with the child anyway, an application can be made to the court for a Prohibited Steps Order, restricting the other parent’s ability to travel abroad with the child.
When deciding such applications, the court’s primary consideration will always be the welfare of the child.
Where are you planning to go?
Be aware that if the court is asked to decide whether you should be permitted to travel with your child to another country, the court will look at the risks involved in allowing you to take the child there. Some countries are members of an international treaty called the Hague Convention which operates a system for the return of children to their home country if they are retained beyond the period of an agreed holiday. This means that courts can be more easily persuaded to allow travel to these countries. If the country you plan to visit with your child is not a Hague Convention country, then you may have to obtain expert evidence of the safeguards that can be put in place to ensure that your child will be returned to their home country at the end of the trip.
Anna Worwood, a partner in the family team and expert in international relocation of children cases says:
“A visit to a non-Hague Convention can be complicated. Different countries take different approaches to safeguards and creative ideas may need to be explored. It is essential that specialist advice from a solicitor is obtained.”
Once agreement or permission to travel from the court is obtained, it is important to consider the legal requirements of the country to which you are travelling. Some countries require proof of the written consent of the other parent by way of a letter of authorisation, for example, when a child is travelling with just one parent. Others may require a court order, which can be time consuming to obtain, so it is best to consider the requirements well in advance of your trip. It is a good idea to check the specific requirements with the relevant Embassy before you travel. You should also consider travelling with any relevant documents such as a copy of the written consent referred to above, birth certificates or change of name deeds where you and your child have a different surname to prevent any issues arising at border control.
If you are the parent opposing a trip, particularly if you think there is a risk of abduction, it is imperative that you act quickly and seek legal advice immediately. You will need to make an urgent application to the court for a Prohibited Steps Order, preventing the other party from leaving the jurisdiction with the child. There are a range of other safeguards that can be put in place, such as passport orders, where the child’s passport is held at a specific place, usually a solicitor’s office, or various undertakings that can be given by the parties, all of which can be discussed with your solicitor.
Dare we mention the ‘B’ word…
The continuing Brexit uncertainty means that the law in this area is in flux. If the UK leaves the EU without a deal, EU law will immediately cease to apply, and we will have to rely on national and international law. The UK Government is preparing a series of statutory instruments to apply in those circumstances, to government issued guidance on family law in the event of a no-deal Brexit ‘…whether the UK leaves the EU with a deal or not, the rules about abduction or wrongfully retained children in EU countries will mostly not change’.
In the event of a no deal Brexit, Parliament will repeal various EU rules, including Brussels IIa, …’an instrument of private international law which plays a vital role in cross-border children cases .’ Instead, when dealing with cases connected to EU member states, Parliament will have to rely on comparable Hague Conventions, such as the 1980 Hague Abduction Convention and the 1996 Protection of Children Convention. Government guidance states:
“The main provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction are incorporated into the law of the UK jurisdictions by the Child Abduction and Custody Act 1985. All EU Member States are party to the 1980 Hague Convention and use it with the UK. This provides a summary procedure for children wrongfully removed or retained away from their country of habitual residence to be returned there, so that long-term decisions about the future of the child can be made. (Abduction includes both wrongful removal and wrongful retention.)
Members of the public whose child has been abducted out of England and Wales should contact ICACU for information on what action to take. If the member of the public believes their child is at risk of abduction in future from any part of the UK they should contact the charity reunite International Child Abduction Centre for advice and information.
If they believe the child is being wrongfully removed from the UK and is on their way out of the country they should go at once to their nearest police station and ask for warning list action. They should also contact reunite International Child Abduction Centre.”
If the Withdrawal Agreement Bill becomes law, so that we leave with a deal, there will be a transition period in which the legal status quo will be retained between the UK and the EU member states. Whichever Brexit situation transpires, it will be vital to seek urgent, specialist advice here (and in the jurisdiction where your child is located) if your child has been wrongfully retained abroad.