If you have separated from your child’s other parent, you might be planning to take your child abroad over the school holidays. But can you just pick up a passport and go, or do you need permission? Sophie Perry from our Divorce & Family team explains...
The law states that you can take your child abroad if everyone with parental responsibility for the child is in agreement, or if you have an Order from the Court that says that the child lives with you (commonly referred to as a “lives with Order”). A person has parental responsibility for a child if they are:-
- The child’s mother;
- The child’s father and was married to the mother at the time the child was born;
- The child’s father and is named on the birth certificate;
- Any other person who has acquired parental responsibility by way of a Court Order or Parental Responsibility Agreement
If a parent has a “lives with Order” then they are permitted by the Court to take the child out of the country for a period of up to 28 days without the consent of the other parent, however they do need to ensure that the other terms of the Order are still complied with. This means that if the other parent sees the child every weekend, then the parent with whom the child lives cannot take the child on holiday if it would impact the time that they should be spending with the other parent without them also agreeing. If the parent with whom the child lives disregards this and takes the child on holiday then they will be in breach of a Court Order.
A child’s mother cannot unilaterally take the child out of the country if the father (who has parental responsibility) does not consent, regardless of whether or not they are currently spending any time with the child. In cases like this, an application to Court would be needed for permission to take the child on holiday; this application is called a Specific Issue Order application. Once the application is made the other party is notified by the Court and they will be able to participate in the proceedings, voicing their view around the child going abroad. The Court will consider what is in the child’s best interests and that includes the following (although this is not an exhaustive list):-
- The child’s wishes and feelings if they are of an appropriate age;
- The purpose of the trip abroad;
- The country that they intend to take the child to and the prospect of getting the child back from that country if the child isn’t returned;
- The reasons for the other parent saying no to the trip abroad
It is important to bear in mind that although Specific Issue Order applications are stand-alone applications, they may lead to further Court proceedings surrounding the child, including who the child lives with and how often they spend with each parent. It is therefore important to consider whether the holiday is actually beneficial to the child and is needed, and whether potentially opening a “can of worms” with other Court proceedings is worth it.
If a child is taken out of the jurisdiction without the consent of everyone with parental responsibility or by a parent who has a “lives with Order” then that parent has committed the criminal offence of child abduction.
If you would like any advice on the above, then please contact THP Solicitors on 0118 975 6622. We offer a fixed fee appointment for £100.00+VAT where one of our Family & Divorce solicitors would be happy to discuss the above, or any other legal matters.