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Posted by Gemma Sparks on 31st May 2019

With May half term drawing close to an end and the summer holidays creeping up fast, many separated parents will be thinking about taking their children on a summer break out of the country.

Parents are urged to remember that you may only be able to legally take your children abroad if you have consent of the other parent, or anyone else with parental responsibility, or you have a court order.

What is parental responsibility?

Parental responsibility (PR) is defined in the Children Act 1989 as “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”.

The mother will automatically have PR.

The biological father will obtain this if he was married to the mother at the time of the birth, is named on the birth certificate, has entered into a Parental Responsibility Agreement, has applied to the court for a Parental Responsibility Order, has been appointed as a guardian, has obtained a Child Arrangements Order (CAO) or has married the mother after the child is born.

Do I need to seek the consent of the other parent?

If you are the parent named on a CAO as the parent that the child lives with, you can legally take your child out of the UK for up to one month without the consent of the other parent or persons with PR. This being said, generally, the legal advice would always be to seek the consent of those people where possible. This promotes a co-parenting relationship by ensuring everyone is aware of plans as well as helping to keep things amicable.

A parent who is not named in the CAO as the person with whom the child should live must seek the consent of the other parent or persons with parental responsibility, before the child is taken on holiday.

Can the other parent stop me from taking our children on holiday?

If there is a CAO in place, the other parent can still object and make an application to the court for a Prohibited Steps Order. This means it would then be for the court to decide whether the holiday can ahead.

When considering any application about children the court’s paramount consideration will be the child’s welfare. Generally, it will be considered that a holiday is in the best interests of the child and the court will not look favourably upon a parent who withholds their consent unreasonably.

What happens if there is no CAO in place?

If there is no existing CAO either parent can legally take the child abroad without the consent of the other. However, the legal advice would generally be against doing so. If you do take them out of the country without consent or a court order, you may risk an application for a Prohibited Steps Order being made against you or even allegations of child abduction (although this is a worst case scenario).

If consent of the other parent is withheld, an application for a Specific Issue Order would need to be made for the court to determine whether permission is granted to remove the child or children from the UK for the purposes of the holiday. Again, the court’s paramount consideration will be the child’s welfare – usually the court will assume that a holiday is in the best interests of the child.

Our advice for separated parents

  • Always get consent in writing from every person who holds parental responsibility for the child, in good time.
  • If you have written consent, take a copy of this with you to the airport.
  • If consent is withheld, you will need to consider making an application to the court for a Specific Issue Order. One of our children law specialists will be able to assist you with this.
  • If you are concerned that someone plans to or has already taken your child abroad without your consent, speak to one of our child abduction specialists as soon as possible.

If you require further information about separated parents or would like to make an appointment please contact Gemma or the Care Team on 01392 421777. Remember, our first appointment is always free.

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