17th July 2018
The summer holidays are nearly upon us when thoughts quickly turn to the annual get-away with the children.
But for separated parents travelling with children, it can sometimes be vital to first obtain the permission from the other parent before leaving the country. Failure to do so could result in getting into trouble with the authorities for the criminal offence of child abduction.
Who Has Parental Responsibility?
From a legal perspective, the first area to consider is who holds ‘parental responsibility’. If someone holds parental responsibility, it means that they are legally recognised as having all the rights and duties that parents normally have in relation to a child and that they are entitled to be consulted about major decisions in relation to the child’s upbringing.
If the parents were married when the child was born, then they will both automatically acquire parental responsibility.
If the child’s parents were not married, then only the mother automatically has parental responsibility. The father automatically acquires parental responsibility if he is named on the birth certificate of the child (after 1st December 2003). Otherwise the parents can sign a parental responsibility agreement giving the father parental responsibility or he can apply to court for an order giving it to him.
Clearing the Trip with Everyone who holds Parental Responsibility
In the event that both parents hold parental responsibility and there is no Child Arrangements Order – Living With (what used to be known as a Residence Order) which has been made, then it is important to bear in mind that neither parent can leave the country with the child without first getting the written consent of the other parent.
If a Child Arrangements Order has been made which stipulates that the child is to live with one parent, then that parent is able to take the child out of the country for a period of up to 28 days without needing to get the permission of the other parent. This is as long as it does not encroach upon any court-ordered contact arrangements in favour of the other parent.
If one parent is unable to obtain the written consent of the other parent, then there is the option of applying to the court for a Specific Issue Order to seek the permission of a judge to travel abroad.
On the flip side, if one parent has refused to allow the other parent to travel, say because of concerns about abduction or that the proposed trip encroaches on school term-time, then that parent can apply to the court for a Prohibited Steps Order to prohibit the other parent from leaving the country with the child. Within that application, it is sometimes helpful to include a request for a Port Alert so that the border authorities can remain extra vigilant.
The Court’s View on Holidays Abroad
The overriding consideration for the court when considering these types of applications is the welfare of the child.
The prevailing view is that foreign travel is beneficial to children and so it is normally the case that a court will be persuaded that a holiday abroad should go ahead unless it can be shown that, for example, it is a pretext for an abduction.
If more than one parent does hold parental responsibility, best practice is to obtain the written permission of the other parent before making the booking.
But if in doubt or if the booking has already been made, it is important to take early legal advice so that there is plenty of lead-in time to obtain the necessary written permissions and avoid any last-minute disappointment!
For further information about travelling with your child as a separated family, parental responsibility or any other children related matters that you would like legal advice on, please contact Rob Parker, Associate Solicitor on 01256 305530 or email firstname.lastname@example.org.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
If you are need of professional, reliable legal advice, contact us today.
Lamb Brooks LLP
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