Travelling with kids – the legalities

Taking your children on holiday abroad

With spring in the air this time of year is when people’s thoughts turn to their summer holidays with families and children. Sadly, what brings excitement for many families, can be a source of tension and disappointment for others with separated parents who struggle to agree arrangements.

Letter of consent

If a parent is planning to take their children abroad without the other parent, but with their consent, it is advisable to obtain a letter of consent to carry when they travel. Many airlines will require this for children travelling with one parent, particularly if the parent and child have different surnames. Before being allowed to board a flight the parent may be asked questions at any UK or foreign border. Many countries have very strict requirements. For example, a parent travelling with a child to South Africa will not be allowed on the plane without the child’s full unabridged birth certificate, in addition to a letter of consent from the other parent.

The consent letter should contain the full details of the parent providing their consent, the child’s name, date of birth and details of the proposed trip. It is recommended that the letter includes the full details of the parent with whom the child is travelling. It may also be useful for the parent to have evidence of their relationship with the child by way of a birth or adoption certificate, or even evidence of a marriage or divorce.

Holidays with children can be far more difficult to agree and organise for separated parents. Parents should always try to agree the arrangements for the children’s school holidays, and this should be done with as much notice as possible. This will allow sufficient time to deal with any issues that may arise should the parents be unable to agree.

Parental Letter of Consent

The consent letter should contain the full details of the parent providing their consent, the child’s name, date of birth and details of the proposed trip. It is recommended that the letter includes the full details of the parent with whom the child is travelling. It may also be useful for the parent to have evidence of their relationship with the child by way of a birth or adoption certificate, or even evidence of a marriage or divorce.

When parents can’t agree travel arrangements

Unfortunately, many parents who are no longer in a relationship are unable to agree arrangements for travelling abroad. When this happens it may be necessary to involve mediators, solicitors and ultimately the courts. Before bringing a court application the court will usually require the parents to have attended a Mediation Information and Assessment Meeting (MIAM). Some exceptions apply (e.g. where one parent lives overseas). At the MIAM a mediator will make an assessment as to whether the case is suitable for mediation. If the case is suitable the other parent will be invited to attend mediation with you in a hope that an agreement can be reached with the assistance of a third party mediator. If matters cannot be resolved it may be necessary to involve solicitors and potentially make an application to the court. If necessary MIAMs can be arranged very quickly.

In most cases a parent wishing to take a child abroad on holiday will need the consent of every person with parental responsibility for the child. A mother automatically has parental responsibility for a child and a father automatically has parental responsibility if he was married to the child’s mother at the time of birth. Alternatively, fathers acquire parental responsibility by either being named on the child’s birth certificate (for children born after 1 December 2003), by a parental responsibility agreement or by court order.

If one person has a Child Arrangements Order naming them as the person with whom a child is to live, they can take the child abroad without the other parent’s consent provided the holiday is for no more than 28 days. However, it is always sensible to inform the other parent as this could prevent difficulties arising. The other parent should be kept fully informed of the holiday plans and where the child will be staying. The parent going abroad should also provide the other parent with the flight details and contact details in case of any emergency.

Who Has Parental Responsibility?

In most cases a parent wishing to take a child abroad on holiday will need the consent of every person with parental responsibility for the child. A mother automatically has parental responsibility for a child and a father automatically has parental responsibility if he was married to the child’s mother at the time of birth. Alternatively, fathers acquire parental responsibility by either being named on the child’s birth certificate (for children born after 1 December 2003), by a parental responsibility agreement or by court order.

If the other parent does not consent to your taking the child abroad you may have to apply to the court for permission to take the child abroad. When considering whether to grant permission a Judge act in the best interests of the child. Amongst the matters a court will consider are, where you propose to travel with the child and whether it is necessary to put in place any safeguards to ensure the child’s return, (e.g. if the other parent considers that there is a risk the parent may not return the children home). You should bear in mind that it may be necessary to wait several weeks for a court hearing and therefore any applications should be made to the court in good time ahead of any proposed holidays.

Wrongful removal of a child abroad

Many parents fear that the other parent will remove their child to another country without their consent, or refuse to return them after a holiday. This is a reasonable fear for many international families. Threats by one parent to abduct a child should always be treated seriously. A number of steps can be taken to minimise the risk and they should be discussed with a specialist lawyer. In these circumstances the concerned parent should keep the child’s passport in a safe place and inform the child’s school and other relevant people, (e.g. grandparents) about their anxiety so they are on alert. If the child is old enough and mature enough the parent may tell the child to be very cautious and ask for help if taken away by the other parent. Ensure the child (and school) knows who, and who will not, be collecting the child from school or other activities.

If there is a real risk of abduction the parent should obtain a Prohibited Steps Order from the court to prevent the child being taken out of England Wales, and if the risk if imminent the court could order a port alert, to warn airports, ports etc. This is an urgent and fast court hearing.

To take a child abroad without the consent of a parent or a court order is Child Abduction and is a criminal offence.

Prohibited Steps Order

If there is a real risk of abduction the parent should obtain a Prohibited Steps Order from the court to prevent the child being taken out of England Wales, and if the risk if imminent the court could order a port alert, to warn airports, ports etc. This is an urgent and fast court hearing.

The contents of this article are for reference purposes only. They do not constitute legal advice and should not be relied on as such, Legal advice should always be sought for your specific circumstance.

By Marianna Michaelides, a solicitor at The International Family Law Group LLP

The International Family Law Group LLP is a specialist law firm, based in London, looking after international and national families. iFLG handles a plethora of financial and forum matters linked to a relationship breakdown and matters relating to children (child relocation, abduction, adoption, surrogacy, contact and residence issues). As accredited international family law specialists iFLG regularly receives instructions from foreign lawyers concerning matters in England and Wales. iFLG is also regularly instructed by ICACU (Central Authority for England and Wales) and we also provide expert evidence abroad in family cases.