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Going on holiday? Don’t forget the children...

Date:8 AUG 2017
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Family law expert, Lawyer

Stala Charalambous is a family law expert

Passport, check; flight tickets, check: luggage, check; permission to take the children? Why check?

If you are proposing to travel on holiday with a child, do you have permission to do so from either the other parent or other person with parental responsibility, the court or if you are not the parent, the child’s parents to do so? If you do not, you could be found to have ‘abducted the child/children’ if you travel without this. Child abduction is a criminal offence. It is defined as the unlawful removal or retention of a child under 16 without lawful excuse. The definition is found in the Child Abduction Act 1984.

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What is parental responsibility?

Section 3(1) of the Children Act 1989 states that parental responsibility means ‘all the rights, duties, powers, responsibilities and authority which by law a parent of the child has in relation to the child and his property.’

Who has parental responsibility?

In England and Wales, a mother has automatic parent responsibility for a child. Parents who have children during marriage, automatically, have parental responsibility for those children (s 2(1) of the Children Act 1989). More than one person can have parental responsibility at one time.

If parents were not married when the child is born, only the mother automatically has parental responsibility. The father can acquire parental responsibility if for example one of the following applies: (a) he marries the mother (and is domiciled in England and Wales when the marriage takes place); (b) he enters into a parental responsibility agreement and files it at court; (c) the court orders that person has parental responsibility; (d) he is named in the child arrangements order as having parental responsibility; (e) he is registered on the birth certificate as the father the child is born after 2003; (f) he becomes the child’s guardian; or (g) he adopts the child.

Children travelling with you abroad or out of the jurisdiction

If you wish to travel with a child under the age of 16 out of the jurisdiction, it is advisable to obtain the written consent of the other person with parental responsibility. If for any reason you cannot obtain this consent, (and do remember that a partner/spouse with parental responsibility may, withdraw that consent at any time), or you think that consent may be withdrawn, you can make an application to court under the Children Act 1989 for permission to take the child on holiday. This is known as a specific issue order application as you will be asking the court to deal with the specific issue, ie to take the child on holiday for a specified period of time.

When making the court application, you will need to show that you have every intention of returning back to where the child normally resides after the holiday. It is advisable to apply to the court well in advance of your travel date to ensure that there is sufficient time to get a court hearing and court order giving permission for the child to travel with you out of the jurisdiction.

Travelling ‘out of the jurisdiction’ does not necessarily mean abroad. It can mean travelling to another part of England for example. The person with parental responsibility who is not going to be travelling with the child, should be kept informed of the whereabouts of the child and given details as to where the child can be contacted if required. It is advisable to keep the channels of communication open between the child and the other parent or other person with parental responsibility.

The court will make an order that it considers is in the best interest of the child.

What if you have no permission from either the court or the other parent or person with parental responsibility?

The other parent/ person with parental responsibility (who objects to the child travelling), can apply for a port alert or to the court under the Children Act 1989 for a prohibited steps order to prevent you from travelling with the child if you do not have permission to do soCriminal proceedings can also be brought for ‘abduction’ if you have already left the country or exceeded your stay with the child in that country. It will also cause distress and will not be in the best interest of the child to have port security services or the police intervene. This can be a very traumatic experience for the child and all those present.

If you are a parent being asked for permission to take the child away out of the jurisdiction of the court for a holiday, before denying permission, think of your reason for saying ‘no’. Is it because you fear the child will not be returned back to the jurisdiction or that it would be harmful and not in the best interest of the child to go to the proposed, particular country? Or, is it because you wish to upset the plans of the other person taking them away or that you envy them doing so? Think about what is in the best interest of the child.

In the case of EN (Mother) v AH (Father) [2015] EWFC 39, a mother wanted to take her young daughter to Turkey for a holiday and to see her extended relatives. The father was concerned that the mother would cross Turkey’s borders and go into Iran with the child to permanently relocate there. Previously, the High Court denied the mother’s application for a specific issue order to take the child to Iran in Re H [2014] EWCA Civ 989The child was the biological child of the parents and was born on 13 August 2010.

An important consideration of any court would be whether or not a child could be swiftly returned back to England in the event that the child’s removal became unlawful.

It makes it easier for a child to be returned back to England from a country that is a signatory to the 1980 Convention on Civil Aspects of International Child Abduction ('Hague Convention').

Turkey, as the judge (the Honourable Mr Justice Cobb) observed in the case of EN (Mother) v AH (Father)), is a Hague Convention country. This would enable the child to be returned, if she was to be unlawfully removed, by for example, if her mother stayed there beyond the number of days that may be agreed and did not return when she said she would. In this case, both parents had parental responsibility for the child and both had indefinite leave to remain in the UK. The mother was proposing to go on a package holiday to Turkey and was able to persuade the court that she had roots in England and every intention of returning back. The judge also considered in that case that it was in the child’s best interest to enjoy a holiday in Turkey and to see her extended family. He considered that the risk of the child being taken across the Turkish border to Iran was ‘minimal’. There were safeguards contained within the mother’s proposals and the court order to provide for the child’s return to England. This included that: England was stated as having the sole jurisdiction for making welfare decisions about the child; the child was not on the mother’s Iranian passport; the mother gave an undertaking (a promise to the court) to provide the father with details of the holiday arrangements and that she would not seek a passport for the child in Turkey and would apply as soon as possible for a British passport for herself; the mother would lodge her divorce certificate and both hers and the child’s birth certificates with her solicitor during the period of travel. In this case, the Family Court granted temporary permission for the child to be removed from the jurisdiction to enable her to go with her mother on holiday to Turkey but ordered the mother to apply for a British passport to travel to Turkey (which he said would make travelling to Iran more difficult) and to surrender her Iranian passport to her solicitors ‘forthwith’. The judge further made a provision that in the event that the mother could not obtain a British passport in time for her to travel to Turkey, that she could make a further application to him for an order and that he would deal with it favourably provided he is satisfied that she did make every effort to obtain a British passport.

Children travelling out of the jurisdiction with people other than those with parental responsibility

It is advisable for those with parental responsibility (usually parents) to provide anyone travelling with their children out of the jurisdiction (for example, grandparents, or a child’s nanny) with written evidence of their consent to do so. This would avoid them being stopped at the borders which can be unpleasant, embarrassing and traumatic for the children.

Sometimes it is necessary for parents to request that their children accompany others to another country. It is advisable to check what documentary evidence (to show the relevant permission from those able to give it, ie those with parental responsibility, to take the child out of the jurisdiction, eg the parents) is required by the particular airline they will be travelling with and also border control in and out of the relevant countries.

Documentary evidence of permission from all those having parental responsibility, can include a statutory declaration from each consenting parent sworn before an independent solicitor confirming their own identity a passport number and nationality, that they are the parent of the child and setting out the extent of their permission and consent for the child to travel out of the jurisdiction and providing details of the person with whom the child will be travelling with, the destination, the reason for travel, and the specified period of time. It would also be helpful to have details of the consenting parents contact details in the event of an emergency and providing authority for the person travelling with the child to be able to take the child to hospital in the event of a medical emergency and exhibiting a copy of the consenting parents’ passports to prove their identity.

Travelling with children that have a different surname

Are you intending on travelling on holiday with your children who are under 16 years of age and have a different surname to you? It is advisable to take a copy of the children’s birth certificate with you, to show that you are the parent of the children. In the event of you travelling without the other parent, you should also obtain the written consent of the other parent or person with parental responsibility. If you do not have, or cannot get this written consent, you should apply to court for a specific issue order to obtain a court order giving you permission to leave the country with the children and take this with you to show the border authorities that you have permission to take the children out of the jurisdiction. If you do not, then you could be questioned at border control as to who you are and why you are removing the children out of the country which could not only be embarrassing and unpleasant but may prevent you travelling.

When is the permission from the court needed to take the children out of the jurisdiction?

You will need to obtain the permission of the court to take the children out of the jurisdiction if the other parent or person with parental responsibility objects to you doing so, and the parent wishing to travel does not have either a child arrangements order (from the court), or what was known previously as a residence order in their favour to show that they can take the child out of the jurisdiction.

The child arrangements order that is obtained from the court under the Children Act 1989, regulates with whom a child lives with and will spend time with and when a child will live with or spend time with that person. If you have a child arrangements order that names you as the person with whom your child lives with (previously known as a residence order), you can go abroad with the child for up to one month without requiring either a further order from the court or the other side’s written permission. Check the child arrangements order or residence order. It usually contains a provision that the child may be taken abroad for up to one month. In the event that a longer period is required, a court application will need to be made for a specific issue order to give such permission.

The children may be excited to travel; they do not wish to be caught up in the middle of arguments between two parents; they are not to be used as ‘pawns’ in the event of parents deciding to separate. It is the responsibility of those with parental responsibility to ensure that the interests of the child come first.

A child focused approach to parenting will bring forth children that love and respect parents and will not make them feel that they have to choose.

Bon voyage – Happy holidays.

The  law applicable in this article is that in England and Wales as of 7 August 2017. While every effort has been made to ensure the accuracy of the information in this  article, it does not constitute legal advice and cannot be relied upon as such. The writer does not accept any responsibility for liabilities arising as a result of reliance upon the information given.