Meta Title :Taking children abroad post-separation
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Aug 4, 2019, 23:00 PM
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It is the time of year when we are regularly advising separated parents on the law in relation to foreign travel.
The 'stock answer' we can give as lawyers is: seek consent. It is informative however to go back to the statute and consider why we revert to this advice.
There are a number of relevant domestic and European laws relevant to this issue but particularly for this short piece The Children Act 1989 and The Child Abduction Act 1984 are relevant, as well as case law.
Where both parents have Parental Responsibility (as is usual for a married couple and this article will presume that is the situation) and they agree, a child may leave the jurisdiction of the UK.
Children Act 1989 and Child Arrangements Orders
If there is a Child Arrangements Order in place then neither parent can remove the child from the jurisdiction without the others consent; s 13 of The Children Act 1989 states:
13) 1) Where a child arrangements order to which subsection (4) applies is in force with respect to a child, no person may –
(a) Cause the child to be known by a new surname or;
(b) Remove him from the United Kingdom
Without either the written consent of every person who has parental responsibility for the child or the leave of the court.
2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month by a person named in the child arrangements order as person with whom the child is to live.
3) In making a child arrangements order to which subsection (4) applies, the court may grant the leave required by subsection (1)(b), either generally or for specific purposes.
4) This subsection applies to a child arrangements order if the arrangements regulated by the order consists of, or include, arrangements which relate to either or both of the following-
(a) with whom the child concerned is to live; and
(b) when the child is to live with any person.
If a parent has a 'Lives with' Order (previously known as a Residence Order), they may remove a child from the jurisdiction for a period of up to one month. As Lord Justice Thorpe states in W v A  EWCA Civ 1587: 'Thus the obligation on the primary carer with a residence order is either to obtain the consent of every person who has parental responsibility, or apply to the court for permission in relation to any planned removal of more than 28 days’ duration.'
If there is a Shared Lives with Order, then either parent remove the child from the jurisdiction for up to a month.
What then, if there is no Child Arrangements Order in place – be that Lives With or Shared Arrangements?
There is no case law to help us. This was acknowledged in Re N (Leave to Remove: Holiday)  EWCA Civ 357,  2 FLR 1124. In that case before Lord Justice Thorpe and Lady Justice Smith in the Court of Appeal Lord Justice Thorpe said (my emphasis added):
Now there is an interesting point of law which has not been explored in the court below, nor is it necessary for us to explore it, as to whether the framework of the Children Act 1989 and in particular, section 13, allows a foreign holiday for a child if the primary carer simply arranges all the travel and relies on others to care for the child throughout the journey and the resultant holiday. So it is to the mother's credit that the application was brought, as it were out of abundant caution, and no attempt was made to rely on the available argument that it was not necessary for her to seek to the permission of the court. Mr Naish has presented his submissions on the basis that we proceed on the assumption that judicial consent is required in the absence of agreement. Certainly there is no agreement.
Alongside the Children Act, is the Child Abduction Act 1984. Under the Child Abduction Act it is a criminal offence to remove a child from the jurisdiction. A parent commits an offence of child abduction if s/he takes a child out of the UK without the consent of the other parent or the permission of the Court. This applies whether or not a Lives with Order is in force.
It is however a defence to the offence of child abduction if the parent can show that they took the child out of the UK jurisdiction where:
The other parent with parental responsibility consented or would have consented if they were aware of all the relevant circumstances.
The parent had taken all reasonable steps to communicate to the other parent with parental responsibility the intention to remove the child even if they had been able to actually communicate with them
The other parent with parental responsibility has unreasonably refused to consent.
Therefore whether or not your client has a Lives with Order, it is important to try to obtain the consent of the other parent to a holiday outside the jurisdiction. Having an email exchange recording that agreement is good evidence that the consent was given. It is good practice to provide the other parent with as much information about the trip as possible – flight details, where the parent will be staying with the child/children and contact details whilst they are there, who else will be on the trip, and what arrangements for Skype or telephone calls can be made whilst they are away. Should the case end up in Court, the Court is likely to be more favourable where the client can show that s/he provided this information because it adds weight to an argument that consent by the other person was unreasonably withheld.
If there is no agreement from the other parent regarding the trip, then the parent wanting to travel could make an Application to Court for a Specific Issue Order. Or, the parent opposing the trip may make an Application to the Court for a Prohibited Steps Order to prevent the travel if there is no Child Arrangements Order in place (i.e. no automatic ban in place).
Arguably given how the Children Act is construed and the lack of case law, rather than making an Application for a Specific Issue Order for permission to travel, the parent wishing to travel could put the onus on the other parent to apply for a Prohibited Steps Order to prevent the travel. This is a riskier strategy but if all of the information above is provided there is a defence to an allegation of child abduction, if that were made.