Taking Children Abroad – Question and Answer

This article addresses frequently asked questions about the practical and legal implications of taking a child abroad.

Q. Do I need permission to take my child(ren) abroad for a holiday from their mother/father?

If there is a Child Arrangements Order (or a Residence Order) providing for a child to live with you, you may take the child for a holiday abroad for a period of less than one month without permission of the other parent.

If you do not have a Child Arrangements Order (or a Residence Order) you will need to obtain the other parent’s written consent to take the child(ren) abroad for a holiday. If consent is refused, you can apply to the Court for a Specific Issue Order for permission. This will generally be approved if the court is satisfied that it would be in the child’s best interests, that the arrangements are reasonable and that the child will be returned to England.

Taking a child abroad when permission has been refused by the other parent (or any one else with parental responsibility) may be classified as child abduction. In these circumstances, the other parent can make an application under the Hague Convention or Brussels Regulation (in Europe) for the urgent and immediate return of the child(ren) to England.

Where a Special Guardianship Order is in force, you may take a child on holiday for up to 3 months without the consent of all persons with parental responsibility.

Q. I am worried that my child(ren) will not be returned after a holiday abroad. What can I do?

If you are anxious that the parent seeking permission to take the child(ren) abroad for a holiday may not return the child, the following practical steps could be taken:-

1. Obtaining details of the return flights, accommodation and itinerary for their stay;
2. Requesting contact details for the child(ren) and making arrangements to communicate with the regularly.

If you have very serious concerns that the child(ren) may not be returned, you should seek legal advice in relation to making an application to the Court to prohibit them travelling. The Court will determine whether or not the child should travel and in doing so will consider whether the following precautionary measures will be sufficient to ensure the child is returned:

1. The parent seeking to take the child(ren) abroad can make promises to the court to:

a) Return the child to England;

b) Return the child at a particular time; and

c) Return the child via a particular route.

If permitted to travel, the Court Order can also make various Orders to attempt to ensure the safe return of the child(ren) such as:

1. Requiring that the Order for the child’s return be mirrored by the Court in the Country the children are travelling to.
2. The parent removing the children can be ordered to provide the child(ren)’s travel documents/ flight tickets to the Foreign Office for the duration of the trip;
3. The Court may make an order providing that new passports for the child(ren) cannot be obtained in the holiday destination.
4. The Court may declare that the child(ren) are habitually resident in England so there can be no doubt about their place of residence.
5. The Court may require a sum of money (a bond) to be paid to the court by the parent seeking to take the child(ren) abroad. The money is returned to the parent once the child is returned to England.

Finally, the Court will give considerable weight to whether or not the country the child is travelling to is a signatory to any international convention requiring the prompt return of abducted children (see below). If the destination country is not a signatory to any such international convention, very serious consideration will need to be given by the Court as to whether the above measures will ensure the child is returned.

If the Court is not satisfied that the child(ren) will be returned, or consider the risk of them not being returned is too high (even with one or more of the above precautionary measures in place) they may refuse to allow the child(ren) to be removed from England.

Q. I want to move abroad and take my child(ren) with me. Do I need permission?

If a person has parental responsibility for the child(ren), you will need his/her written permission to take child(ren) abroad. This will not necessarily mean just the other parent and can include, for example, grandparents with parental responsibility.

Permission may not be needed if you are the only person who has parental responsibility. However, a person who contests your decision to move abroad with the child(ren) can apply to a court for parental responsibility and an Order prohibiting you from removing the children from England.

If the other parent (or persons with parental responsibility) object to you relocating with the child(ren), you can apply to the court for permission. In making its decision the Court must consider what is in the children’s best interests and a number of principles have been derived from case law that the Court must consider. Some examples of these principles are as follows:

• The court will consider the motivation of the parent wishing to relocate;
• There will be careful scrutiny of the applicant parent’s proposals as far as schooling, accommodation and financial support are concerned;
• The applicant parent must put forward reasonable proposals for ongoing contact between the children and the parent remaining in the UK;
• The Court will consider the impact on the child of having less frequent contact with the other parent if the application to relocate is granted.
• The Court will consider the impact of refusing the application on the applicant parent and the children.
• If the children have reached a sufficient age and degree of maturity, their views will be taken into consideration by the Court

Applications for permission to move abroad permanently should be well thought through and it is important to seek legal advice.

Q. If I do not have permission and I move abroad with my child(ren), what will happen?

If you have moved abroad with the child(ren) (or to England from another company) without permission from the other parent, the left behind parent can make an urgent application for the prompt return of the child(ren) to their home country. This is defined as child abduction.

The United Kingdom is a signatory to a number of International Treaties designed to specifically deal with this situation including the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”) and the EC Regulation 2201/2003 (“Brussells II Revised Regulation”) which applies to all European Community Member States (except for Denmark).

The law in this area is complex and requires a dedicated Child Abduction Solicitor to deal with any such proceedings. Ellis Jones is a specialist in this area and immediate advice should be sought in this situation.