If you are separated or divorced, you might feel like taking your child abroad should be a straightforward matter, especially if it’s just a holiday. And it is, mostly, but in terms of what parents are legally allowed to do under principles of family law, going abroad with a child usually requires the consent of the other parent, and beyond that there are a few other things to consider.
This guide breaks down how it all works for separated parents in England and Wales. We’ll go over when you need consent, when you don’t, when travel is allowed under a court order, and what to do if you cannot reach an agreement.
When do you need the consent of the other parent?
In most cases, you will need the consent of the other parent, and any other person with parental responsibility for the child, before taking a child abroad, including school or family trips and holidays, no matter how brief. There are exceptions to this, which are discussed below.
Luckily, consent isn’t complicated, but it does need to be clear, preferably in writing, and agreed on well in advance.
What is meant by “parental responsibility”?
It may sound obvious, but there’s actually a bit more to parental responsibility than simply being a parent. Legally speaking, it means having the authority to make important decisions about a child’s upbringing.
It is worth noting that all biological mothers will automatically have parental responsibility for their children, whereas fathers and non-biological mothers do not automatically have parental responsibility. Parents who are not the biological mother acquire parental responsibility if they are married to the biological mother at the time of the child’s birth, or if they are named on the child’s birth certificate as the child’s second parent (as father or second mother) if they are not married to the biological mother.
Normally, parents share responsibility for their children, even if separated. If you’re not sure if anyone else has parental responsibility for a child, it is worth checking, because consent to travel abroad with a child will be needed from everyone with parental responsibility. Our experienced children issues solicitors can talk you through this.
When you can take your child abroad without consent
There is one common exception that can apply after separation: if you have a child arrangements order (CAO) that says your child lives with you (you may know this as a “lives with order”), you can take your child abroad for up to 28 days without needing the consent of the other parent, unless the court order says otherwise.
Parents often assume “shared care” automatically means the same thing as “lives with” in a CAO, but there is a distinction. You can learn more in this blog.
If you need to change an existing order because it no longer reflects your child’s needs, or because travel arrangements have become a repeated issue, you may be able to change it.
What information should you give when asking for consent?
If your goal is to reach an agreement, the best starting point is honesty, and making sure the other parent is fully informed. A lot of disagreements happen because the other parent feels uneasy about a lack of information as to the particular arrangements for the holiday, rather than because they object to a holiday in principle. So, we recommend being open about the details of the trip from the outset, including:
- Destination and travel dates
- Flight details and times
- Accommodation address and contact details
- Who else is going
- Any activities that the other parent may reasonably have concerns with
- How and when the other parent can contact your child (within reason) while they are away
Are there any documents you should travel with?
Even when you have consent, it’s important to travel with documents that prove your relationship to your child and your authority to travel, especially if you have a different surname to your child. These can include your child’s passport, a copy of their birth or adoption certificate, a copy of the child arrangement order, and written consent from the non-travelling parent,
In all likelihood, you won’t need to prove your relationship to your child, but it is always better to be prepared. That said, we know passports are often a sticking point with separated couples, so if you are dealing with disagreements in that respect, we have more information on how to manage this.
What if you are unable to come to an agreement?
If you cannot reach an agreement, you should not take your child abroad anyway. Leaving the country without the required consent is child abduction, even if the trip is harmless in principle and you fully intend to return. The safer legal option is to take professional advice early and go down the correct legal route, which may involve mediation, solicitor negotiations, or in the last case scenario or where the matter is urgent, an application at court to determine the issue.
The court application usually needed here is for a specific issue order. This is the request to the court to decide whether the child can travel, and on what terms and conditions (such as dates and prohibited locations). These applications are made under section 8 of the Children Act 1989, and they are commonly applied for using Form C100.
If you are worried your child may be taken abroad without your agreement, then you would apply for a prohibited steps order. This is a request to the court to formally disallow the parent’s actions. If the situation is urgent, then you make the application urgently and “without notice” being given to the other parent. As part of this application, you can request that the court order that the child’s passport be prevented from use and/or returned to you.
In the most urgent cases, you can also ask your local Police constabulary to issue a “Port Alert” if your child is likely to be taken abroad within the next 48 hours. A Port Alert is active for 28 days and notifies all UK points of departure that a child should not be allowed to travel abroad. Within that 28 day period, you can then take legal advice and, if necessary, issue an application at Court for a Prohibited Steps Order.
The court will always make their decision based on what is in your child’s best interests, which will involve considering:
- Whether the trip is safe
- How well planned it is
- Whether it interferes with the other parent’s time or arrangements
- Whether there is any risk your child will not return
- How you and the other parent have attempted to resolve your disagreement
If you have learned that your child has been taken abroad without your consent, then you can report the abduction to your local police constabulary, who will work with Interpol to locate your child in the event you do not know which country they have been taken to. You will also need to seek urgent legal advice for an application to the court for the child’s return, as there are different rules depending on whether the child is in a “Hague Convention” country or not. Our specialist children issues solicitors can advise you further on this issue if applicable.
Ready for take-off
As long as the legal side is handled before the suitcase is packed, travelling abroad after separation is normally simple. It’s all about protecting you, reassuring the other parent, and keeping the focus where it should be: on your child having a fun (and safe) holiday.
If you would like professional help confirming whether you need consent, checking what your CAO allows, or taking the right steps in lieu of agreement, our children issues solicitors have had decades of experience advising on exactly this. Contact us today to arrange your initial consultation.