As the festive period draws near, parents whether separated or divorced, will be looking to agree arrangements for spending time with their children over the holidays. It is not uncommon for plans to include a desire to take the children abroad. Whilst there are various practical considerations to think about (some of which will vary depending on the country you are travelling to) in certain circumstances obtaining formal consent from the other parent will need to be top of your list. Often, without formal permission in the correct form, the travelling parent (and their children) could find themselves sitting in the airport and going no further.
What do you need to think about?
When making plans to travel abroad with children after separation, the considerations are two-fold:
- Do you need permission?
- What documentation will you need, from a practical point of view?
Let’s look at these in turn.
- Do you need consent from the other parent to travel with your child?
We assume here that both parents have parental responsibility for the child- (A mother will automatically have parental responsibility for her child. A father will usually have parental responsibility if he is married to the mother or is named on the birth certificate). In this situation, where one parent wishes to travel alone with their child, more often than not, they will need to obtain the consent from the other parent. You shouldn’t necessarily assume that the other parent will withhold consent but they should be consulted and informed of the travel plans as a written confirmation of consent may be required by immigration authorities. This is discussed further below.
Safe to say, however, there is no automatic right to take the child abroad but there may be instances where the parent will not need to obtain consent for travel, where for example, there has already been judicial involvement.
So, when might consent from the other parent not be needed?
- If you have a court order specifically stating that you may take your child out of the jurisdiction (a ‘specific issue’ order)
- If you have a court order under section 8 Children Act 1989 (a Child Arrangements Order) which states that the child lives with you – this means you can take your child abroad for up to 1 month without the consent of the other parent or permission from the court.
In the absence of the above, you will need to make sure you have permission from the other parent before travelling.
There may of course be circumstances where a parent has very real concerns that their child may not be returned to this jurisdiction if they go abroad (‘child abduction’). In this case, where there are legitimate reasons for refusing permission, steps can be taken to ensure the child is not taken out of the country. More information on child abduction and the steps you can take to either avoid the unlawful removal of a child form the jurisdiction or what to do if they child is already abroad can be found on the gov.uk website.
A parent will need to have a good reason for refusing permission. It is of course fact specific. Tensions between the parents should not interfere with a child enjoying a holiday abroad with a parent, unless there are concerns for the child’s safety and welfare.
It is important to establish therefore:
- why a parent may refuse consent in the first place;
- what can be done / what information can be provided to put their mind at ease (such as details of the travel plans including flight details and where the child will be staying).
If no agreement can be reached, advice should be sought as to the best way forward, particularly if time is of the essence.
Once you have permission from the other parent, (or have permission as a result of a court order), what documentation might you need to evidence this consent?
- Do you need formal ‘consent to travel’ documentation?
If you are intending to travel over the holidays with your child, there are also some practical issues you will need to consider. Always check with the embassy of the country which you are visiting (as well as the airline) to see if there is any specific documentation you will need in order to travel alone with the child. A consent to travel is a requirement in certain countries such as in South Africa, Portugal and Russia but the exact form of this consent may vary. Difficulties can often arise, in particular, where your surname differs from that of your child. Carrying evidence of your relationship with your child (such as a birth certificate, marriage certificate of Decree Absolute) can therefore assist and may be a requirement.
In some cases, a notarised consent to travel may be required. This is a document prepared by a Notary Public whose role it is to authenticate a document for use abroad. Some countries simply require you to produce the child’s birth certificate and a letter signed by the other parent confirming permission to travel with the child. Either way, you will not want to leave for the airport without this documentation in hand to avoid any difficulties further along the line. (Please see our blog on notorisation for more information).
The need for this documentation should be apparent. Immigration authorities need to satisfy themselves that a child is not being taken abroad without one or both parents’ knowledge and consent. In some cases, you may find that no documentation is required but it is not worth arriving at the airport without first checking what you may or may not need.
Helpfully, the Home Office has produced a sample letter of permission to travel (to be signed and witnessed by a solicitor) which can be found here. As mentioned above, the onus is on the parent travelling to ensure they have the correct ‘consent to travel’ documentation as this can vary depending on the destination country.
Finally, as a matter of courtesy, informing the other parent of your desired travel plans in good time, giving them the details of travel once booked and if necessary, scheduling any catch-up contact time with that parent is advisable in the interests of good co-parenting and of course, in the interests of the child. At the same time, the staying-behind parent should respect the other parent’s time abroad with the child and not interfere with the holiday plans unless this becomes necessary.
If you are finding it difficult to have these kinds of conversations with the other parent or have reached a standstill regarding contact arrangements, mediation may be able to facilitate this conversation and help reach a solution. For more information about our mediation services, please click here. Crucially, if either parent were to make an application to the court, they would first need to attend a Mediation Information and Assessment Meeting (MIAM) anyway (with some exceptions). This meeting is designed to inform the applicant about the benefits of mediation and determine whether it may be appropriate as a means of resolving the issue at hand instead of resorting to court proceedings.
Some couples may also find that arbitration could provide an efficient means by which to resolve their dispute. It can also be a sensible process option where an outcome is required quickly. Please see our arbitration page on our website for more details and our process options page for alternative ways to find a resolution between you and your partner.
For more information on any of the above, please speak with any of our top London divorce and family lawyers on T: 020 7420 5000 or contact any member of our team at E: firstname.lastname@example.org