The law
If you share parental responsibility with your child’s other parent (i.e. if you were married at the time your child was born or if both parents were named on the child’s birth certificate) then it may be necessary to obtain his/her agreement before embarking on a holiday.
Travel within England and Wales
Generally speaking, it is not necessary to obtain the consent of your ex-spouse or former partner if you want to take your child on holiday within England and Wales. However, if there is a court order in place then the division of your child’s time may be stipulated in that order.
Foreign travel
If you have a court order in place which provides that the child “lives with” you (which may be a “joint lives with” order with the child’s other parent) then you may take your child abroad for up to 28 days without the consent of the other parent.
If you do not have a court order in place which regulates the division of your child’s time between his/her parents then you will require the consent of the other parent before you can take your child overseas.
If you do not have the consent of every person with parental responsibility for your child, or a court order permitting you to travel with your child, and you take the child overseas regardless, then this will constitute child abduction.
Specific Issue Order
If your former partner/spouse withholds his/her consent to foreign travel unreasonably, the only way in which you may proceed with your holiday is to apply for a Specific Issue Order. The court will apply the “welfare checklist” in considering whether to permit the holiday. In doing so the court will consider factors such as the ascertainable wishes and feelings of the child, how capable the parent is to meet the child’s needs, how long the child spends with that parent currently, how long the proposed holiday is for, whether steps have been put in place to enable the child to continue to contact his/her other parent and whether the child is used to foreign travel. The court will also consider whether there is any risk that the child may be abducted (i.e. retained in a foreign country without the parents’ consent). The family court will consider all of the circumstances and generally do not take kindly to parents who are seen to be unreasonably refusing consent or using it as a means to make things difficult for their former partner.
Prohibited Steps Order
If you want to ensure that your former partner/spouse does not try to take your child abroad you can apply for a Prohibited Steps Order, preventing them from travel. This can be done irrespective of whether there is a “lives with” order in favour of the particular parent.
Three practical tips
- Often any potential sticking points can be flushed out at an early stage by sitting down and having an open discussion about the arrangements. It is best to be as organised as possible and, if there is no court order or parenting plan in place, it is advisable to try to agree dates and travel arrangements as early as possible. Then, if it proves difficult to reach an agreement, you still have time to seek legal advice, attend mediation or, ultimately, make a court application.
- Once approval has been obtained, it is advisable to obtain a letter from your former spouse or partner, providing written confirmation of his/her consent and providing his/her contact details as well as details of the trip. If you and your child have different surnames it is advisable to bring the child’s birth/adoption certificate and your marriage and divorce certificates.
- It may seem unnecessarily personal; however it is generally seen as good practice to provide details to the other parent such as the address(es) at which you will be staying, travel arrangements and flight times.
What if you are concerned that your former spouse/partner may seek to retain your child overseas?
If there is a genuine risk of abduction then you should decline to give your consent to the trip and seek urgent advice from a family lawyer. It may be necessary either to refuse to any foreign travel altogether or to put in place various safeguards such as bonds (payment of money to be retained as a form of insurance, pending the child’s return), undertakings or other assurances.
For further advice or information, please contact Harriet Errington, Partner in the Family Department or, alternatively, telephone on 020 7465 4300
To learn more about divorce and separation you can download a free copy of our Essential Guide to Divorce and Family Law here.
