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Rebecca Delaney
Rebecca Delaney
Director & Partner
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Travelling abroad with children after separation – is permission needed?
Date:24 JUL 2018
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Consultant
Getting away on holiday with children is hard enough; following separation, there may be an additional complication and it will need early attention.

My family has had to make use of the 'PMT' mnemonic to ensure passports, currency and tickets are safely packed prior to leaving home. But now it is 'PMTP'. After parents have separated, many WILL need the permission of the other parent to take their children abroad and will need to have that permission properly documented. They will need this:
  • either as a matter of law (a relative rarity); or
  • as a matter of practicality.
Parents should check with the relevant Embassy before travelling to see if a formal consent to travel is required or recommended. A formal consent to travel is widely required, for example, in South Africa, Portugal and Russia.

Avoiding child abduction is driving Governments around the world to impose ever stricter controls on the movement of children, even when they are travelling with a parent. This is even more likely to crop up where your surname and the child’s are different … and we still find that men travelling with children abroad or leaving one country to return home are more likely to face challenge or difficulty.

Either way it is increasingly essential, as well as to help your child through the challenges that holiday travel so often throw up, to have your papers in perfect order and thus ease your way through immigration or exit procedures.

First, be tolerant of the system: there is a reason for it. 2016 saw 1,140 child abduction offences and more will have gone under the radar. Each is likely to involve a trauma for that child that will often cause long-term harm and distress. The vigilance of immigration officers is about slowing this torrent.

Secondly, the law in this jurisdiction (England and Wales but not Scotland, the Isle of Man, or the Channel Islands or any part of Ireland etc.) is pretty non-interventionist … for those who like their law with authority:

Abduction


An attempt to remove someone under 16 from the United Kingdom (note: not just England and Wales) without appropriate consent…
Usually commits a criminal offence with fairly limited defences (for example, believing that the other parent would have given permission)
Section 1 of the Child Abduction Act 1984
Specific provision



If a court order confirms that you can go
Then that solves the problem
Section 13(3) of the Children Act 1989
General s 8 provision


If you have an order (under s8 of the Children Act 1989) that a child lives with you
Then (subject to any specific provisions) you have permission to travel abroad for up to one month
Section 13(2) of the Children Act 1989

Otherwise:
  • there is no automatic permission to take the child abroad; and
  • no automatic entitlement of the remaining parent to refuse permission.
The situation adopts the usual norm of the Court, namely
  • No intervention (s 1(5) of the Children Act 1989)
  • But liberty to apply to the Court for specific arrangements (usually only after attending a meeting with a mediation officer to secure a 'MIAM certificate').
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Having said that, if an application is made to the court, the judge is likely to be pretty unhappy about the use of court time. Court applications are in short supply and are intended for serious difficulties about serious issues. Questions that may be raised will include:

To the remaining parent:
  • What is the objection to the trip?
  • Why was it important to prevent the child from having the benefit of a holiday?
To the holidaying-parent
  • What did the remaining parent seek? (Information? Replacement time? Contact-on-holiday arrangements? Reassurance about return? Or were there real concerns about the duration of the trip or the destination?).
  • Would it have been so hard to provide that information or address those concerns?
In short, therefore, in many situations there is nothing that:
  • prevents either parent from taking their child abroad; or
  • requires them to go equipped with the other parent’s written permission when they do so.
However, there are various hurdles waiting for the unwary (or unprepared) on an overseas trip:
  • Checking in at the airport or ferry terminal to leave the UK. Airlines’ rules vary. Some will require a single parent to have a letter from the other; others do not. The rules of the airline’s home country (about which below) seems to inform their approach in the UK.
  • You may have no problem leaving the UK but find when you arrive at the airport to return home that a letter is required to leave the foreign country. Do not expect the fact that you are all British citizens returning home to exempt you from this. For example, Canada requires the written permission of all parents or guardians to leave Canada with a child. As a result, Air Canada will not let you board the aircraft to leave Canada without a letter of permission and often ask for it to be verified prior to arriving in England. You can expect your children to be asked where Mum or Dad is. That your children are British, and/or checking in for a UK bound flight, does not alter this.
  • Immigration – either entering a foreign country or at the UK border returning home. If your passports bear different surnames (either as a result of choice, divorce or remarriage) you can expect a higher level of enquiry and you are far more likely to be called out.
Officials in the immigration service quite reasonably may say:
  • 'Going abroad even for a short period is a relatively major decision that the other parent would usually want to agree to'; and
  • 'It is certainly simple to obtain the other parent’s written permission and bring it so why haven’t you got it?'
We recommend starting early to gather together the various paperwork needed on whichever side of this struggle you find yourself:
  • Where there have been difficulties in the separating relationship, one parent may see this as the opportunity to extract the quid pro quo to solve other issues.
  • Alternatively, there may be real concerns about the trip.
  • You will struggle to get a court order within 2 months of the departure date even if you move at speed, so delaying that difficult conversation may mean that you simply lose any chance of a 'plan B' if the price being demanded is not one that you are prepared to pay.
So what documentation should you have to hand?
  • (Ideally formal) copy birth certificates proving the children’s parents. These can be obtained by either parent for a small fee from www.gro.gov.uk
  • Proof that you are the parent (complicated where you have changed your name but a marriage certificate/proof of divorce will usually form the relevant links).
  • An original signed letter (with copies, in case documentation is retained) from the other parent ideally providing:
a) Details of the trip that you are taking;
b) Their consent to that trip;
c) Signature with a name that corresponds to the evidence on the birth certificate – so again there is a clear set of links documented from the name proved to be the parent on the birth certificate all the way through to the name giving consent on the letter.
  • Increasingly this documentation needs to take a particular form and you may need the consent to travel to be notarised. For further information on how to obtain a notarised consent to travel, read our recent blog here.
Where there is impasse, then:
  • Mediation may assist in identifying an arrangement that could pave the way to agreement – and, where it works well, a calmer more child-focused approach to separated parenting generally. Where agreement is not possible, then:
    • A court application will usually be needed (and a visit to a mediator to obtain a MIAM certificate is likely to be needed to issue the application);
    • Parents are starting now to use arbitration as the quicker and cheaper route to secure the necessary structures.
It all seems a challenging but tedious set of preparations perhaps exceeded only by the tedium of waiting at immigration for permission to get away on holiday or to return home at the end of the holiday.

Bon voyage!

This article was originally published by Family Law in Partnership
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