Do I need permission to take a child abroad?

Kesha Pabari

The Importance of Getting Permission Before Taking a Child Abroad

Taking a child abroad requires more than just booking flights and packing bags, especially when the child’s parents are not traveling together. Permission is crucial to ensure that the trip does not violate any custody agreements or parental rights. Consent is essential to safeguard the interests of the child and to ensure that both parents or guardians agree to the travel arrangements.

Taking a child abroad without the appropriate consents can potentially be interpreted as child abduction. This is particularly the case when one parent or guardian leaves the country with the child without the explicit consent of the other parent who shares parental responsibility. Getting permission is therefore not only good parenting practice but necessary to avoid legal repercussions.

Do Mothers Need Fathers’ Permission to Take a Child Abroad?

The answer to this question is not straightforward.  There are a number of relevant domestic and European laws but particularly for this short piece The Children Act 1989 and The Child Abduction Act 1984 are relevant, as well as case law. 

When planning to take a child abroad, whether for a holiday or a longer trip, it is essential to have the consent of everyone with parental responsibility.

Understanding Parental Responsibility

By law, mothers are automatically granted Parental Responsibility when the child is born. Fathers also have it if they are married to the mother when the child is born or are listed on the child’s birth certificate.

When Both Parents Share Responsibility

Typically, both parents have parental responsibility. Under these circumstances, one parent cannot legally take the child out of country without the other’s consent or a court order permitting them to do so. This is crucial to prevent legal repercussions, including charges of child abduction.

If you have a Child Arrangement Order in place

If there is a Child Arrangements Order (an Order of the Court) in place then neither parent can remove the child from the jurisdiction without the other’s consent. If however a parent has a “Lives with” Order (previously known as a Residence Order), they may remove a child from the jurisdiction for a period of up to one month.

Alongside that, is the Child Abduction Act 1984.  Under the Child Abduction Act it is a criminal offence to remove a child from the jurisdiction.   A parent commits an offence of child abduction if s/he takes a child out of the UK without the consent of the other parent or the permission of the Court.  This applies whether or not a Lives with Order is in force.

A parent seeking to remove a child from the jurisdiction should seek the agreement of the other parent with parental responsibility.  Failing agreement the parent wanting to travel would need to make an Application to Court for a Specific Issue Order.  Or, the parent opposing the trip may decide to make an Application to the Court for a Prohibited Steps Order to prevent the travel if there is no Child Arrangements Order in place (i.e. no automatic ban in place).

What are the consequences of not getting permission?

• The non travelling parent can seek legal action, which can result in a court order demanding the child’s return.
• Courts may view unauthorised travel as a lack of trustworthiness which can impact existing custody agreements.
• Unauthorised travel can cause emotional distress to the child and the parent that stays at home, affecting the child’s well-being and the parents’ relationships.
• In cases where consent is not given, a parent may need to apply to the court for permission to travel to prevent being accused of child abduction.

There are three broad categories of child abduction:

1. Abduction – this is where a child is taken out of the jurisdiction without the consent of all those with Parental Responsibility or permission from the Court;
2. Wrongful retention – a parent may consent to the child going abroad but only for a limited period of time, for example, two weeks. A parent can be considered as wrongfully retaining a child if they refuse to return the child to the jurisdiction upon that agreed period ending; and
3. The threat of abduction – this is where there is a risk that a child will be taken overseas without the appropriate consent.

Threat of abduction

Act as fast as possible if there is a real concern that your child will be taken abroad without your consent.

If this threat is imminent, it is important to notify the Police urgently. Child Abduction is a criminal offence, and the Police can try to help if they are notified in time.

It is also as equally as important to locate your child’s travel documentation. If your child’s passport is with the other parent, this should also be communicated to the Police. If you live under the same roof as your ex-partner and are concerned about a potential abduction, it may be worth knowing where the child’s travel documentation is located.

Instructing a specialist child abduction solicitor as quickly as possible is also very important. Depending on the facts, it may be necessary to make an urgent application for a Location Order and Prohibited Steps Order to prevent your ex-partner from being able to remove the child from the country.

Abduction/Wrongful retention

If you find yourself in a position whereby your ex-partner has already taken your child abroad or, alternatively, refuses to return your child after an agreed holiday period, you need to contact the Central Authority in the country where your child is. It is very important to act as quickly as possible.

For example, if your child had been abducted to England, this would be ICACU (international child abduction and contact unit). ICACU could then appoint a specialist child abduction solicitor to help you.

If you are unsure about your child’s location, you should contact a solicitor immediately.

How Do You Get Permission?

• Talk to the other parent as early as possible before you plan to travel to allow ample time to come to an agreement. Be clear about the details of the trip, including where you plan to travel, the dates, and where you will be staying.
• Discuss the travel plans in person or over the phone to gauge the other parent’s concerns or approval verbally. Note any concerns the other parent might have and address them appropriately to reassure them of the child’s safety and well-being.
• Once verbal consent is obtained, follow up with a written letter outlining the details of the trip. Have both parents sign it to formalise the agreement.
• If the other parent refuses to give permission, consider mediation services to reach an agreement.
• If you cannot get permission and mediation doesn’t work, you can apply to a family court for permission to travel. Be prepared to show that the travel is in the child’s best interest and will not affect the other parent’s rights.

Can I Travel With My Child if the Other Parent Doesn’t Respond?

This can be challenging and requires careful handling. Make sure that you:

• Make every reasonable effort to contact the other parent. Use various methods such as emails, texts, phone calls, and letters.
• Check any existing custody agreements or court orders. Sometimes, these documents outline procedures for such situations or might already include provisions for travel.
• If the other parent still doesn’t respond and you have exhausted all attempts to reach them, you may need to apply for a court order. The court will consider the best interests of the child.
• Document all attempts to make contact, this will demonstrate to the court, if necessary, that you tried to obtain consent.

It is a defence to the offence of child abduction if the parent can show that they took the child out of the UK jurisdiction where:

• The other parent with parental responsibility consented or would have consented if they were aware of all the relevant circumstances.
• The parent had taken all reasonable steps to communicate to the other parent with parental responsibility the intention to remove the child even if they had been able to actually communicate with them.
• The other parent with parental responsibility has unreasonably refused to consent.

Help and support from Osbornes Law

To speak to a child abduction solicitor, call Kesha Pabari, or complete an online enquiry form.

Kesha specialises in dealing with cross-jurisdiction disputes, including child relocation matters and representing the applicant and respondent in child abduction matters. Kesha also has experience in representing applicants and respondents seeking international contact through Article 21 of the Hague Convention.