With the school summer holidays now upon us, it is important that divorced and separated parents are aware of the practical and legal implications of taking their children out of the UK and make the necessary arrangements to ensure that the holiday period runs smoothly.
Does the parent taking the child out of the UK require the other parent's consent?
In the haste of holiday preparations, separated parents often do not realise that obtaining their former spouse or partner's consent to take a child out of the UK should also be on their pre-holiday checklist.
The requirement to obtain consent depends on:
- who has parental responsibility for the child; and
- whether there is a Child Arrangements Order (CAO) in place that is regulating with whom the child is to live with. Such Order can be obtained following a divorce where there is a dispute as to where a child should live.
What is parental responsibility and who has it?
Parental responsibility is the legal term for all the rights and responsibilities that parents have in relation to their children. This includes making decisions about the child's accommodation, education and medical treatment.
A child's mother automatically has parental responsibility. A child's father will also have parental responsibility if:
- he was married to the child's mother at the time of the child's birth;
- he marries the mother after the child was born;
- he is registered as the child's father on the child's birth certificate (from 1 December 2003);
- he has entered into a Parental Responsibility Agreement with the child's mother;
- he has obtained a court order granting him parental responsibility; or
- he has obtained a Child Arrangements Order and in is named in the Order as a person with whom the child lives.
Consent where there is No CAO in place specifying that the child should live with one parent
If both parents have parental responsibility, then neither parent can take the child outside of the UK without the consent of the other unless permission has been granted by way of a court order.
Many parents are unaware that if they do not obtain the requisite consent before taking their child abroad they will potentially commit the criminal offense of child abduction. This is the case irrespective of the duration of the trip. It is therefore crucial that parents plan ahead and prioritise obtaining the other's consent before becoming swept up in the holiday excitement and finding themselves inadvertently committing a criminal offense.
Consent where there is a CAO in place specifying that the child should live with one parent
Neither parent can remove the child from the UK without:
- the written consent of every person who has parental responsibility for the child; or
- the court's permission.
There is an exception to this rule for the parent named in the CAO as the person with whom the child is to live which allows that parent to take their child out of the UK for periods of less than one month at a time without permission from the other parent (unless there is a court order to the contrary). In these circumstances however it is still good practice to keep the other parent informed of holiday arrangements as this will hopefully reduce the chance of their plans being contested by way of an application to the court.
What action can a parent take if the other refuses to consent?
Sadly in the context of separation and divorce, is not unusual for one parent to unreasonably withhold their consent to prevent the other from taking their child on holiday. In this situation, permission of the court must be obtained by way of a Specific Issue Order before the child is taken out of the UK. It is therefore important that parents seek the other's consent early so that if it is not forthcoming an application can be made to the court in good time.
In summary, it is crucial that parents prioritise obtaining the requisite consent before embarking on a holiday outside of the UK. If parents keep each other informed of their holiday plans and prioritise obtaining consent early, applications to the court can hopefully be avoided alongside unnecessary acrimony.
If you have questions or would like any further information, please contact Isobel Massey on 01392 333864 or firstname.lastname@example.org.