Holidays and abduction

With the summer holidays under way, some families will be counting down the days until their holiday getaway or booking a last-minute deal. However, for separated parents, arranging a holiday can be extremely tricky and complex. Family Solicitor, Shamila Hussain, addresses the common question asked in these situations: “do I need consent to take my children on holiday abroad?” 

Separated parents often don’t realise that they may need to obtain consent from the other parent if they wish to take their children out of England or Wales for holiday purposes, even to Scotland. 

Not obtaining permission from the other party can mean that the non-residential parent can disagree and cause conflict when you have already made plans and booked tickets. Taking the children without consent can mean you may find yourself accused of child abduction and stuck at border control. To make sure the holiday proceeds smoothly, it is crucial that parents understand where they legally stand, and get it all clear in writing in advance of taking the children abroad.  

If a Child Arrangements Order is in place to say that the children reside in the primary care of one parent, then the primary carer can take the children abroad (‘outside the jurisdiction’) for up to 28 days at a time. Some court orders have provision for the non-resident parent to take the child or children abroad providing they provide advance notice and give details of where and when the holiday is and provide contact details. Whichever parent takes the children on holiday, both will still be required to provide these details to the other parent to ensure the parent knows where the children are. However, parents should ensure that any holidays do not potentially place them in breach of any other provisions of that order, i.e. booking a holiday at a time when the other parent was to have the children.   

If there is no court order, the consent of those who hold parental responsibility, i.e. mother, father, stepparent or guardian is required to remove the children from the jurisdiction. If consent is not obtained, then legally-speaking, a parent who removes the children from the jurisdiction is ‘abducting’ the children, which is a criminal offence and could lead to serious consequences, including imprisonment. 

Obtaining consent 

It is important to communicate with the other parent weeks before the holiday to avoid any last-minute complications and conflict. Parents should share the full itinerary of the proposed holiday, including travel arrangements, accommodation details, information of anyone else traveling with them and how they can contact you or the children in case of an emergency. 

It is advisable to get consent in writing, i.e. letter, text or email especially if there is a risk that verbal permission will be withdrawn before travel. This can then be produced at the airport to satisfy officials if any questions arise. The letter should include, but not be limited to; details of the holiday, the other parents/guardian’s contact details, and their signature. For some countries, it is a necessary to have a written agreement from the other parent before they will allow entry. 

Other documents 

If you are travelling outside the jurisdiction with the children, you may also want to carry the following documents, if necessary: 

  1. A copy of any Child Arrangements Order, confirming the children live with you, or proves you have the Court’s approval to have contact with your children.
  2. Evidence of your change of name (if applicable). Some women revert to their maiden names following a divorce.
  3. Your children’s birth certificate.
  4. If the other parent has died, you will need a copy of their death certificate.

You should also check whether a holiday destination has any additional rules or requirements. 

Can the other parent refuse consent?  

If the other parent refuses to agree to your holiday plan, then you can apply to the court for permission to remove the children from the jurisdiction for the purpose of a holiday. Alternatively, if you are concerned about the children being removed from the jurisdiction, then you can apply to the court for a Prohibited Steps Order to prevent the children being removed from the jurisdiction. The court will evaluate the positions of both parents before deciding what is in the best interests of the children. One common concern raised by parents objecting to their children travelling abroad is the fear of non-return. If there are legitimate concerns or if the country is not a signatory to the Hague Convention, then the court will assess the following: 

  1. The level of risk that the children will not be returned back to the jurisdiction;
  2. The seriousness of the consequences if the children are not returned;
  3. Any safeguards that can be implemented to ensure their return or provide assistance if the children do not return.

The court can and does refuse applications if there are potential risks associated with non-return. 

MIAM  

Parents are expected to attempt mediation, and at the least attend a ‘Mediation, Information and Assessment Meeting’ (MIAM). The family mediator will provide information relating to mediation as well as other alternative options to resolve the dispute without needing to go to court. 

You are exempt from attending a MIAM if: 

  1. You are applying for a consent order;
  2. If the application is urgent and/or you are applying for a without notice hearing;
  3. You are a victim of domestic abuse;
  4. You have already been to a MIAM or taking part in another form of NCDR;
  5. If the application involves emergency proceedings or emergency protection orders etc.

A new change allows the court to adjourn proceedings to explore non-court dispute resolution, regardless of whether the parties have agreed to explore it or not (FPR 3.4,)

If you fear that your children may be at risk, or have been abducted by the other parent take legal advice urgently. 

For more information on our services, please contact a member of our experienced family law team. Call 033 3344 9600 or email [email protected].

Author: Shamila Hussain, family law.