“I don’t give you permission to take the children abroad”, “you are not allowed to travel with the kids”, “I refuse to give you their passport”, “my lawyers say you’ll be abducting the children if you travel with them without my consent” – just a selection of the types of emails and WhatsApps we see passing between separated parents. And you thought that travel with children was stressful when you were in a happy relationship….!
But what is the law on international travel with children once you and your partner are separated? And why do people often get it so wrong? All is answered below.
Please note: by and large the law does not distinguish, in this context, between married and un-married couples. Therefore, except where expressly stated, the below article applies to travel with children (a) for married couples during, and after, a divorce; and (b) for unmarried couples, who are separated.
The starting position – (a) consent; and (b) documentation
The law is simple – to travel internationally with a child, you must have the permission (aka consent) of all holders of ‘parental responsibility’ (“PR”, defined below) for that child. See headings below for the limited exceptions to this.
The consent should be documented, as the travelling parent could be asked for evidence of their permission to travel with the child, and their relationship to the child, at the UK or foreign border. To evidence the legality of the travel, a travelling parent should take:
- The written consent of all those with PR, ideally with a copy of the passports of those PR holders giving their consent;
- Proof of their relationship with the child, such as their birth or adoption certificates. This is particularly important where the travelling parent has a different surname to the children they are travelling with;
- The divorce (or marriage) certificate;
- Full contact details of the consenting PR holders; and
- Specifics of the trip such as flight and accommodation details.
Depending on the circumstances, the non-travelling parent may, as a condition of their consent, insist on suitable assurances or undertakings from the travelling parent, to ensure the children’s return. If there is genuine concern as to child abduction/wrongful retention by the travelling parent, this can include a bond (payment of money) into Court to incentivise the travelling parent’s return with the children.
The travelling parent should provide the flight details, accommodation details and contact number while abroad to the non-travelling parent at least 21 to 28 days before the travel. While this is not a legal requirement per se the Courts strongly encourage this information sharing, to encourage communication post-separation and also to allow indirect contact (such as phone calls) between the non-travelling parent and the children while they are abroad.
The exception to consent – a child arrangements order
The main exception to the need for the non-travelling parent’s consent, is if there is a child arrangements order (“CAO”) in place which specifies that the children are to ‘live with’ the travelling parent. In that instance, the person with the benefit of a ‘lives with order’ can travel with the children for up to 28 days, without the consent of the non-travelling parent. While this is the law, it is good practice/advisable for the travelling parent to discuss the proposed travel with the non-travelling parent, not only to ensure that any proposed travel does not impinge upon the non-travelling parent’s proposed own time/holiday arrangements with the children. exception
What is parental responsibility (“PR”) and who has it?
The scope and nuances of PR would take up an entire article in itself. But in simple terms,
it is defined in s.3(1) Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” The concept focusses on the responsibilities that a parent may have towards a child, rather than their rights as a parent.
A mother automatically has PR as a result of giving birth to the child. A father will have PR if he was married to the mother at the time of the child’s birth, or, if the parties are not married, if he is named on the child’s birth certificate. If none of these apply, a father can acquire PR by:
- By entering into a parental responsibility agreement with the mother;
- By applying to Court for a parental responsibility order;
- By subsequently marrying the mother; or
- By obtaining a child arrangements order.
Non-parents will never automatically have PR, but can apply for it. This includes grandparents, aunts/uncles, step-parents or a local authority in the context of public children proceedings.
What if the other holder(s) of PR refuse permission to travel?
Sometimes a non-travelling parent will say something to the effect of “if I refuse permission, he/she can’t travel with the children – that’s the end of it and if they still travel, that’s child abduction”. That is only half the answer.
The law, requiring permission, is not there for a non-travelling parent to unreasonably exert control. If a non-travelling parent refuses permission, then an application for a Specific Issue Order (“SIO”) can be made to Court. This can be as part of existing proceedings for a CAO, or as a standalone application. An application for an SIO can be made on an urgent basis, if, for instance, the proposed travel is in the next few weeks.
The Court’s determination of an SIO is fact specific. But it will, as part of the determination, apply the ‘statutory checklist’ in s.1(3) Children Act 1989. This includes the ascertainable wishes and feelings of the child, and how capable each parent is at meeting the child’s needs. The Court will place particular regard as to whether that parent has ever taken the child on holiday before. If not, a holiday might represent a significant change in circumstances for the child. Whilst it does not necessarily mean the application will not be granted, the Court will consider it in the context of other factors, such as the proposed length of the holiday. But moreover the Court will consider whether the travelling parent represents an abduction risk, i.e. whether there is a risk that the travelling parent will wrongfully retain the children in the foreign jurisdiction.
So yes, a non-travelling parent can refuse permission for international travel but they should consider, having taken legal advice, whether they are unreasonably refusing, by reference to the factors the Court would consider on an application for an SIO.
How long can the children be taken away for?
The children can travel for whatever period the non-travelling parent has consented to, or is specified in the SIO. Alternatively, as set out above, if the travelling parent has the benefit of a ‘lives with order’, then they can travel for up to 28 days without the permission of the non-travelling parent.
Failure to obtain consent or staying in the foreign jurisdiction beyond permission
Quite simply, travelling internationally without the consent of the other parent, without a SIO, without a ‘lives with order’ in your favour (for travel up to 28 days), or remaining in a foreign jurisdiction beyond the period of consent, will constitute child abduction, and may be a criminal offence. This is a fact-specific specialist area of law and beyond the scope of this article. Please contact us for any advice on child abduction, which can require urgent applications.
Does it make a difference whether the travel is UK only/domestic?
Where a domestic holiday takes place within a parent’s existing time with the children, then they will not need the non-travelling parent’s permission. However please note above about courtesy, maintaining good parental relations and provision of travel plans/contact information. For these purposes, the UK extends to England, Wales, Scotland and Northern Ireland – however these four countries do not share the same legal system, and the permissions required from a separated parent and a child to move between them (e.g. between Scotland and Northern Ireland) may differ from the law of England and Wales (which is that set out in this note).
Does the law differ for grandparents?
No. Grandparents will similarly need the consent of all holders of PR (which may include both parents, if they both have PR), a SIO or a ‘lives with order’ in their favour (travel up to 28 days). It is similarly best practice for the consenting parents to be provided with copies of the flight and accommodation details.
