Divorce and Holidays : Can I Travel with My Children?

Divorce and Holidays: Can I Travel with My Children?

Planning a holiday abroad with your children should be exciting—not a legal minefield. But for separated or divorced parents, even a simple trip can raise complex legal questions. Can you take your child overseas without your ex’s permission? What happens if they say no? And what documents do you need to avoid issues at the border?

In this post, Daniel Coombes, director and collaborative lawyer at FLiP unpacks the key legal considerations for divorced or separated parents who want to travel with their children.

Can I take my child abroad after my divorce?

If you want to take your child abroad after your divorce you will need the permission of your former spouse. It would be a good idea to ensure you have evidence of their consent.

There is an exception to this: if you have a court order dealing with the arrangements for your child and you are named as the parent with whom the child lives – as opposed to being the parent that the child ‘spends time with’, then you are entitled to take your child abroad for up to 28 days (unless the order specifically says you cannot do so). If your order was made a while ago, the terminology will be different, you may have a ‘residence’ order in your favour rather than a ‘contact’ order. However, even in those circumstances, it is usually a good idea to let your former spouse know of your intentions and to give them details of the trip – in case of emergencies etc.

Even if you are entitled to remove your child from the jurisdiction of England and Wales because you have a ‘lives with’ (or ‘residence’) order in your favour, your former spouse could still seek to object to you taking your child abroad. The onus would be on them to get a court order preventing you from taking the child away. This applies whether or not the court would prevent or permit the trip would depend on the circumstances. The fact you are entitled to take your child abroad by virtue of having a ‘lives with’ (or ‘residence’) order in your favour does not mean you are entitled to take your child abroad when the child is supposed to be with your former spouse.

What if we aren’t legally divorced and are only separated, does this change anything?

No – this would not change anything. The basic point is that if you want to take your child abroad, you need the permission of everyone who has ‘Parental Responsibility’ (“PR”) for the child (or the permission of the court). This applies even if you have not yet separated from your spouse – or even if you were never married and / or never even lived together. Technically, it applies even if you are happily married / living together – you need the permission of everyone with PR (or the court).

What can I do if my ex-spouse won’t consent?

If your former spouse (or anyone with PR) does not consent to the trip abroad, you will need the permission of the court to take your child out of the country. This is important. If you take your child abroad without the consent of everyone with PR or the permission of the court, you could be committing a criminal offence of abduction. If a parent is involved in, or is soon to be involved in, court proceedings regarding their child, the court will likely take a very dim view of that parent removing a child from the jurisdiction if they did not have the appropriate consent.

Matters would be even more serious for that parent if the other parent had made it clear that they positively do not consent to the trip.

You should bear in mind that applying to the court for permission to travel can take weeks and even months to conclude. You would need to start that process in plenty of time before the trip. It is likely to be quicker to resolve the issue in arbitration, rather than through the courts, if the other parent will agree to arbitrate.

Does it matter if I don’t have the same surname as my child?

Whether or not you have the same, or different, surnames is not the issue. The key issue is making sure you have consent to the foreign trip from everyone who has PR (or the permission of the court). However, having different surnames can present different difficulties. Even if a child’s parents are still together, there can be complications if the child has a different surname to that of the accompanying adult. This can even be an issue when a child is lucky enough to be taken on holiday by a friend’s family, or grandparents if they have different surnames. Border officials may raise questions and require documentation, to prevent child trafficking.

In short, the travelling adult will want to ensure that they have evidence of consent to the trip from everyone who has PR (e.g. a signed letter of consent). If you as the parent have a different surname to your child, it is advisable to have evidence of the parent / child relationship. This could be copies of the child’s birth or adoption certificate naming you as their parent and evidence of any changes of name (eg marriage certificate, decree absolute / final order of divorce, Change of Name deed etc).

Some airlines have their own requirements or template letters / documents – it is worth checking. Any letters of consent should clearly state that the travelling adult has permission to take the child abroad. It should also state the reason for travel and should include all relevant contact details in case border officials want to raise queries.

Certain destinations can have their own particular rules and regulations – it is worth checking before you travel. You could make enquiries with The Home Office, or a representative of your chosen airline.

It is better to have as much supporting evidence as you can reasonably have.

It is also a good idea to explain to the child that they might be asked questions by the border officials, so that they are warned. You should explain they need to answer clearly and honestly – it is not an appropriate time to make jokes! Depending on the age of the child, the border officials may make it clear the parent cannot assist with answering the questions.

What documents should I take with me?

As stated above, you want to have written and signed evidence of consent to the trip from everyone who has PR.

You will also want to have evidence of your relationship to your child – birth / adoption certificates, marriage certificate, decree absolute / final order of divorce, Change of Name deed etc.

Obviously, you’ll also need passports for all people travelling – don’t forget that basic requirement in the process of addressing all these additional points!

I am not going abroad – do I need permission to go away within England & Wales?

You don’t need formal permission from everyone with PR if you are traveling within England and Wales. That being said, common sense and courtesy would support telling the other parent about the intended trip and giving relevant details in case of emergencies etc. Also, obviously, you should not take your child away over a period that they are supposed to be spending time with their other parent.

Can I take children away during term time?

The basic position is that you cannot usually remove your child from school during term time without the appropriate permission from the school. You can be fined or face legal action for doing so. If your child misses school for the purposes of a holiday and the other parent has not agreed to this, you are likely to find that the other parent will be very unhappy. If parenting issues end up in court (or arbitration), the judge (or arbitrator) is also likely to take a very dim view of a parent who removes a child from school without very good reason. This is especially the case if the other parent has not consented (it will be even worse if the other parent has actively said the child must not be removed from school but the parent removed them anyway). This could have negative consequences for any wider parenting issues / disputes.

Coparenting about arrangements for holidays after a divorce can be difficult, especially in the early days. Taking a proactive approach and being clear about what your plans are will be helpful. In addition, being mindful about offering alternative dates for any time that your child will miss with their other parent when they are on holiday with you, can help to get to an agreement.  It is always worth bearing in mind that whilst you may no longer be married, you remain co-parents going forwards. Investing on making that new dynamic work for your child takes time but is worth your efforts.