Happy Holidays…Removing your Child from the Jurisdiction as a Separated Parent

Thursday, May 2nd, 2019

Family & Divorce Law Department

With the summer holidays fast approaching, many families will be making plans for a relaxing break away with the children. If you are a separated parent, there may be some extra things to think about before you can commit to that beach break with the little ones.

If there is no Child Arrangements Order in place, that being an order regulating who the child lives with and spends time with, a parent will legally require the permission of every person with parental responsibility (PR) for the child before they can remove them from the jurisdiction of England and Wales. In most cases, this would just be your co-parent, but if anyone else has PR for the child, their permission would also need to be obtained. If it isn’t, the removing parent would be committing the offence of child abduction under the Child Abduction Act if moving them out of UK, breach of which is punishable by a fine or imprisonment – no way to start your holiday. Practically, it is useful to confirm permission in writing, for example by text or email. You should also make arrangements for passports, if held with the other parent, to be handed over in good time for the trip to prevent any last-minute hiccups.

Once you have permission and passports are in hand you should provide your travel, accommodation and emergency contact information to your co-parent as a matter of courtesy, and just in case anything goes wrong. If the child is missing out on direct contact with their other parent as a result of the holiday, it might be helpful to offer indirect contact instead, for example a quick Facetime call or video-chat. This will allow your little one to share their experience with the absent parent and is also likely to make your co-parent feel less excluded, putting them at ease during the break.

If your co-parent is unwilling to give their permission for you to travel, you might want to consider taking formal steps to resolve the issue. The usual approach would be to attempt to mediate in the first instance. Mediation is a voluntary collaborative process, and the mediator would guide you through it, facilitating discussions and helping you to reach a mutually acceptable agreement. However, mediation is not for everyone and if relations with your co-parent are especially difficult, you might need to make an application to court. The court can make a determination on specific issues affecting the child, including whether they can be removed from the jurisdiction and where the child’s passport should be kept, with the child’s best interests in mind at all times. In some cases, the removing parent may need to provide certain safeguards to reduce the risk of the child being abducted. An application can be made at short notice so can be useful if your co-parent is delaying unnecessarily and without good reason. However, court applications can be both emotionally and financially expensive and every effort should be made to resolve the issue by agreement if possible.

If a Child Arrangements Order is in place stating where the child lives, the “lives with” parent can remove the child from the jurisdiction for less than a month without the permission of the co-parent (or anyone else with PR). However, if the other parent has a “spends time with” order it will be important to ensure that you do not breach that order by taking your child away. In any event it will usually be sensible to keep the other parent informed and provide them with all of the necessary information about the trip. If the “lives with” parent wanted to take the child for a month or more, or the “spends time with” parent for any trip out of the jurisdiction (or if no Child Arrangement Orders are in place) and an agreement couldn’t be reached, a court application would need to be made to determine the issue. If a Special Guardian is appointed under a Special Guardian Order, the Guardian can also remove the child for up to 3 months without the other PR holders’ agreement, after which a court application would need to be made in the same way.

You should be cautious and take copies of paperwork with you such as copies of the children’s passports (in addition to the originals!), a copy of the court order giving you permission or Residence/’Lives with’ order and the letter from your co-parent giving permission. Also, always ensure that you check whether the country you are travelling to has any additional specific requirements you will need to comply with about the movement of children. For example, some countries have an absolute requirement of a formal letter of authority from the non-travelling parent granting permission for the trip, or even a Parent Consent Affidavit. Check with the relevant embassy about this ahead of time if you are unsure to prevent problems at the foreign border on arrival, or on your journey home.

Careful planning and sensitivity to the thoughts and feelings of your co-parent will go a long way towards ensuring your holiday plans run smoothly. Courtesy and a collaborative approach will usually be the most constructive way to achieve the desired outcome with the least amount of disruption when it comes to short-term holiday arrangements. However, if this approach fails and communication breaks down, there are alternative ways to resolve matters and break the deadlock to achieve the best result for the child.

If you would like more information about holiday arrangements for your children, or if you need assistance with taking the children on holiday or having them returned home following a holiday, please contact Hanne & Co on 020 7228 0017 to speak to a member of the Family Department.