Separated from my spouse – can I take the children abroad on holiday?
News article published on: 24th May 2019
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.
Where both parents have parental responsibility (as is usual for a married couple and this blog will presume that is the situation) and they agree, a child may leave the jurisdiction of the UK. The UK jurisdiction is defined as England, Wales, Scotland and Northern Ireland. There is no automatic ban on the child’s removal in this situation as far as the Children Act 1989 is concerned, but see further below regarding Child Arrangements Orders, Lives with Orders and child abduction.
Child Arrangement Orders
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 others 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).
Taking children outside the United Kingdom
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.
Whether or not you have a Lives with Order, it is important to obtain the consent of the other parent to a holiday outside the jurisdiction. Having an email exchange recording that agreement is good evidence that the consent was given. It is good practice to provide the other parent with as much information about the trip as possible – flight details, where you will be staying and contact details whilst you are there, who else will be on the trip, and what arrangements for Skype or telephone calls can be made whilst you are away. Should your case end up in Court, the Court is likely to be more favourable where you can show that you provided this information because it adds weight to an argument that consent by the other person was unreasonably withheld.
Lisa Pepper is a family law solicitor and mediator. She is a partner at Osbornes Law. Follow Lisa on Twitter @LisaPepperLaw