It’s that time of year again. The school summer holidays are almost upon us, and separated parents across the country are looking forward to taking their children abroad on holiday.
But before you go rushing off to the airport you need to ensure that you are legally permitted to take your child abroad. If you are not, you could be committing the criminal offence of child abduction, if the holiday is outside the UK.
The first thing to consider is: what exactly is meant by ‘abroad’? The answer to that question is actually more complicated than many may think. Clearly, anywhere outside the United Kingdom comes within the definition, but note that ‘United Kingdom’ does not include the Channel Islands or the Isle of Man, both common holiday destinations.
However, there is a further complication. The four countries of the United Kingdom (England, Scotland, Wales and Northern Ireland) do not all share the same legal system. Accordingly, removing a child from one legal system within the UK to another, for example from England and Wales (which share the same system of family law) to Scotland, may effectively amount to the same thing as taking the child ‘abroad’, as we will see shortly.
The next thing to consider is: has a court made a child arrangements order or, in older cases, a residence order, in relation to the child? If it has, then no person may remove the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child (more of which in a moment) or the leave (i.e. permission) of the court.
However, a person named in the child arrangements order as a person with whom the child is to live or, in the case of residence orders, a person in whose favour the order was made, may remove the child for a period less than one month without requiring such consent/permission. Incidentally, you may come across references to ‘28 days’ rather than ‘less than one month’, including on the GOV.UK website. The rule is set out in the Children Act 1989, which refers to ‘less than one month’. However, as the shortest month can be only 28 days, then that is probably the safest rule of thumb to follow.
If the last paragraph does not apply to you then you will need to seek the consent of anyone who has parental responsibility for the child before you can remove them from England and Wales (note that I am not saying ‘the UK’ – consent is still required, for example, to remove from England to Scotland). For obvious reasons, that consent should preferably be in writing. You can obtain the consent from them directly, or through solicitors, for example, if you are not able to communicate with them directly.
The next question is: who (else) has parental responsibility for the child? Usually, this is fairly obvious, particularly as parents who were married both have parental responsibility, but sometimes it will not be so obvious. An unmarried father may have obtained parental responsibility (even if he has not, I would suggest that it would be a good idea to seek his consent, especially if he sees the child regularly), and other people may have parental responsibility, for various reasons. For further details regarding parental responsibility, see this post.
If the person(s) with parental responsibility does not consent and the child arrangements/residence order rule does not apply, then you will need to obtain the permission of the court before you take the child abroad. Note that court proceedings may be avoided if both parties agree to sort the matter out via mediation.
In most cases, the court is likely to grant permission for you to take your child abroad, especially if the holiday is for a reasonable period, and to a reasonable destination (not, for example, a place where the child may not be safe). The main problem that arises in cases such as this is where there is perceived to be a risk that the child may not be returned to this country at the end of the holiday. This may particularly be an issue if the parent has family living in the country to which they intend to take the child, and especially if the country is not a signatory to the Hague Convention on Child Abduction, meaning that it could be very difficult to legally secure the return of the child (for a list of countries that are signatories to the Convention, see here). I wrote here back in March about one such case, in which the court refused permission for a mother to take her children to China for a holiday.
The above is of course just a brief summary of the law. For detailed advice, you should consult a specialist family lawyer.