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Nicole Derham discusses separated parents taking their children abroad as international travel reopens

  • May 17, 2021
  • By Nicole Derham, Senior Associate

Can I take my child abroad on holiday if the other parent doesn’t agree?

With international travel now possible again, decisions about family holidays this summer may be tricky, with the possibility of quarantine and concerns about Covid variants. For separated parents taking different perspectives on the risks of international travel this summer, decision-making may be difficult.

Whether you can take your child abroad without the other parent’s agreement depends on your circumstances – on whether the other parent has “parental responsibility”, and on whether there is a “lives with” order in force.

Parental responsibility is all of the rights, duties, powers, responsibilities and authority which a parent of a child has in relation to the child and his or her property. Those with parental responsibility have the right to take important decisions for a child, including in relation to travel. Where a child’s parents were married, or the father is named on the birth certificate, both parents automatically have parental responsibility; in other scenarios it can be secured by agreement or court order.

If both parents have parental responsibility, then if either takes the child abroad without the other’s agreement or a court order, it will amount to child abduction, which is a criminal offence. This is the case even where the child is based with one parent and has little contact with the other parent.

However, if the court has made a “lives with” order – an order naming the person(s) with whom the child is to live – then anyone named in that order may take the child abroad for up to a month without first obtaining the consent of the other parent. However, if the trip would interfere with the time the child is due to spend with the other parent under the court order then they will need that parent’s agreement – otherwise they will be breaching the court order.

In some cases, the Court can make a “shared lives with” order, naming both parents as persons with whom the child lives, even where they live in different households, and even if the child doesn’t spend equal amounts of time with each parent. In that situation, both parents may take the child abroad for up to a month without the other’s agreement.

However, a parent named in a “lives with” order should still give reasonable notice to the other parent of any planned trip abroad. This is often stipulated when the order is made. What is considered reasonable notice will vary depending on the circumstances and the judge; from experience, this can mean anywhere between one to eight weeks (and sometimes more).

If the other parent objects to the trip, they can apply to the court for a Prohibited Steps Order preventing it, and the court will make a decision based on the best interests of the child. This will be fact-specific decision, taking into account the benefits to child of the holiday, as well as any risks it poses to them or other family members.

Where there is a “lives with” order, a parent not named in the order needs either the agreement of the other parent or a court order to take the child abroad. Without this, removing the child from the UK would be child abduction. If an agreement cannot be reached, then they can apply to court for a Specific Issue Order permitting the trip. Again, the decision will be based on the child’s best interests.

If holiday arrangements can’t be agreed, then consider mediation, in which a neutral, professionally trained, mediator will facilitate discussion, or negotiating with the assistance of solicitors. Alternatively, arbitration offers a quicker and more flexible process than court proceedings (though note it is only available if the proposed destination is a member of the 1980 Hague Convention on child abduction). Arbitration mirrors the court system, with an experienced specialist lawyer taking on the role of the judge. The resulting award is binding and can be made into a court order.

I advise any separated parent considering taking their children abroad this summer to raise the prospect sooner rather than later, to ensure any issues can be resolved in good time and avoid last minute difficulties and the risk of losing money on a holiday that can’t go ahead.

If you need any advice on taking children abroad or any other family law issues then please give me a call on 020 7412 0050 or email me at Nicole.Derham@hunterslaw.com.

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