Separated Parents’ Guide to Traveling with Children: Legal FAQs

Summer is a popular time of year for travelling abroad, to spend the school holidays with friends and family living elsewhere in the world or simply to escape the office and the unpredictable British weather! However, for separated parents wanting to travel with their children, there is more to think about than which flight to book and what to pack, so it is very important that you start making plans early.

Jump to the relevant question in your case:

1. Do you have the consent of all persons with parental responsibility?
2. Do you have a court order/ child arrangements giving you permission to travel?
3. Is the consent/court order conditional?
4. What are the legal requirements of the country you are travelling to?
5. What are the covid-19 travel restrictions in place for the country you are travelling to/returning to?

Do you have the consent of all persons with parental responsibility?

You will need the consent of all persons with parental responsibility unless you have a court order giving you permission (see below).

Parental responsibility means having all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property.

Mothers automatically have parental responsibility. Fathers automatically have parental responsibility if they were married to the mother at the time of the birth or (for children born after 1 December 2003) they are registered on the birth certificate. Fathers can also acquire parental responsibility by way of a parental responsibility agreement, or court order.

If you are not the only one with parental responsibility and you travel abroad with a child without the other’s consent then this constitutes child abduction and is a criminal offence, (unless this is to Scotland, Wales or Northern Ireland). So it is important to ensure you have their consent before you travel.

Do you have a court order/ child arrangements giving you permission to travel?

If you do not have the consent of all persons with parental responsibility then you will need to apply for a court order giving you permission to travel, if you do not already have an order in place.

You can apply for the following orders: –

• A child arrangements order stating that the child lives with you. This will enable you to take the child abroad for up to 28 days without consent, unless there is a separate order that prohibits this (known as a prohibited steps order). However, where it has been made clear that someone with parental responsibility objects to you going abroad with the child, it is best practice to apply for a specific issue order even if you already have a child arrangements order in place.
• A specific issue order giving you permission to remove the child from the jurisdiction for a holiday, known as an application for temporary leave to remove.

Both orders can be applied for using the Form C100 and will be decided by the court in the best interests of the child in accordance with the welfare principle and welfare checklist, which takes into account the wishes and feelings of the child, their needs, their age, sex and background, the impact of any change in circumstances, any harm they are likely to suffer and how capable each parent is of meeting their needs. These proceedings can take several months so it is important to know at an early stage whether consent will be forthcoming or if a court application may be necessary.

Is the consent/court order conditional?

It is common for consent or permission to be given on certain conditions.

These can include:

• Providing the other parent with full details of the planned holiday a certain number of days/weeks/months in advance e.g. dates of travel, flight or other travel arrangements, accommodation and contact details, who else will be travelling with you, and the reason for the trip.
• Only allowing travel to certain countries e.g. countries which are a party to the Hague Convention, where it is easier to secure the return of a child unlawfully removed/retained, or for a certain number of days.
• Specifying the arrangements for handing over/returning the child’s passport.
• Making alternative arrangements for the children to spend time with the other parent, if the holiday spans time when the children would otherwise have been with the other parent in accordance with child arrangements previously agreed or ordered.
• Indirect contact (via Skype, or FaceTime) with the other parent whilst away, for example on days when they would otherwise have spent time with the other parent if at home, or on special occasions such as birthdays.
• In some cases, providing the other parent with some form of security in the event that you do not return as promised e.g. payment of money into court, or handing over certain documents (e.g. your birth certificate), that will only be returned once you are back in England.

You should consider these things when seeking consent or permission, and ensure you have as much information available as early as possible regarding your proposed trip.

What are the legal requirements of the country you are travelling to?

Each country has different requirements for allowing a child to travel abroad without both parents.

For example, if you wish to travel to South Africa or Canada then you will need a signed parental consent affidavit (South Africa) or letter of authorisation (Canada) from the other parent and a court order granting the parent wishing to travel full parental rights and responsibilities and permitting them to take the child on holiday without the other parent.

If you have been able to deal with the child arrangements between you directly to date, and therefore do not already have a court order in place, then this means going to court specifically for an order by consent, which can be frustrating, costly, and time-consuming. So it is important to check the requirements of each country far in advance of your proposed trip.

What are the covid-19 travel restrictions in place for the country you are travelling to/returning to?

You will now also need to check the rules for travelling with children in the country you are travelling to and from, including whether there is a requirement for each child to be vaccinated or whether a negative PCR test is required.

If vaccination is a pre-requisite for travel, and your child is not already vaccinated, then you will need to get the consent of all persons with parental responsibility before vaccinating. If this consent is not forthcoming then you will need to apply for a specific issue order seeking permission for the vaccination to be administered.

Again, this specific issue order can be applied for using the Form C100 and will be decided by the court in the best interests of the child in accordance with the welfare principle and welfare checklist. These proceedings can take several months so it is important to consider this at a very early stage and ensure all necessary orders are sought at the same time, if an application to court is necessary.

Last but not least, don’t forget your passports (and any other necessary documents).

Make sure that you have your passport and your child’s passport before you travel. This might mean arranging a time to collect your child’s passport from the other parent in advance, if it is not already in your possession.

You may also need proof of vaccination, a negative PCR test, and/or a passenger locator form, depending on the location of travel.

It is also advisable to travel with a copy of the child’s birth certificate, particularly if your child has a different surname to you, as well as any documentation evidencing any change in your name e.g. your birth certificate, marriage certificate, decree absolute or change of name deed.

If you are considering travelling abroad with your child, during the summer holidays or any other time of the year, it is important that you consider the need for legal advice at an early stage. If consent is required, but not forthcoming, then you should try to resolve matters in mediation before applying for a court order. This will give you an opportunity to discuss the proposed trip in more detail and hopefully reach an agreement that enables you to travel. However, if time is of the essence or it is clear that no agreement will be reached, then it may be best to issue proceedings straight away.

At Anthony Gold we are experienced in dealing with all aspects of family breakdown, including arrangements for children and the need to seek consent or permission from the court to remove a child from the jurisdiction temporarily, or permanently. If you think you may require legal assistance a member of our family team can advise you in more detail on your options and agree the best course of action for your specific circumstances.