Taking children abroad for holidays, whether for leisure, to visit family, or as part of a school or educational programme, is a normal part of many families’ lives. However, after parents separate, many are unaware that the legal position surrounding overseas travel with children can change significantly.
Taking a child outside the UK without the necessary consent can have serious legal consequences. In most cases, the consent of everyone with parental responsibility is required. It is not enough for one parent to decide unilaterally simply because they are the child’s mother or father.
Written by Aurora Chan, Legal Assistant
In some circumstances, removing a child from the UK without the appropriate consent may amount to child abduction, even where there was no intention to permanently remove the child or cause harm.
If you are planning to travel abroad with your child after separation, it is important to understand your legal obligations before making any travel arrangements.
What is child abduction?
Under the Child Abduction Act 1984, it is generally a criminal offence for a person connected with a child to take or send a child under the age of 16 out of the United Kingdom without either:
- the consent of everyone with parental responsibility; or
- the permission of the court.
This applies regardless of whether the child is being taken abroad for a short holiday or with the intention of relocating permanently, but the latter is likely to incur more serious legal consequences.
Who has parental responsibility?
If the child’s biological parents were married when the child was born, then both parents will automatically have parental responsibility.
If the biological parents were not married, the mother automatically has parental responsibility. The father will usually have parental responsibility if he is registered on the child’s birth certificate. Different rules may apply in cases involving adoption, surrogacy or IVF.
Additionally, parental responsibility can also be granted to other individuals by order of the court. Other individuals may also gain parental responsibility, including adoptive parents, stepparents, guardians or special guardians, or the local authority, through various means or by order of the court.
Before bringing a child under 16 years old outside the UK, it is important to establish all the individuals who have parental responsibility, as consent must be obtained from everyone who holds it. If you are unsure, you should seek legal advice before travelling.
What is parental responsibility?
Under section 3 of the Children Act 1989, parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property.”
In practice, parental responsibility gives a person both the right and the duty to be involved in important decisions about a child’s life, including:
- where the child lives;
- education;
- medical treatment;
- the child’s name; and
- whether the child can travel abroad.
What are the rules for taking a child out of the jurisdiction?
The rules on bringing a child outside of the UK depends on whether there is a Child Arrangements Order in place.
If there is no Child Arrangements Order, then consent must be obtained from everyone with parental responsibility on each occasion. If consent cannot be obtained, then the parent wishing to bring the child abroad can apply to the court for a Specific Issues Order for permission to travel.
If there is a Child Arrangements Order in place, the terms are likely to set out specific rules regarding overseas travel. Generally, a person who is named in a “lives with” order can take the child abroad for up to 28 days without permission from anyone else, unless the order provides otherwise.
Getting your child back
If your child has been wrongfully removed from the UK without your permission, the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) may assist in securing their return.
The Hague Convention is an international treaty between participating countries designed to ensure that children who are wrongfully removed or retained across international borders are returned promptly to the country where they were habitually resident before the removal. The courts of that country can then determine any longer-term issues regarding the child’s care and living arrangements.
There are currently over 100 contracting countries to the Hague Convention.
Generally, contracting countries will seek to arrange the prompt return of a child where the requirements of the Convention are met. However, there are limited exceptions, like where there is a grave risk of harm of returning the child, or where the child is sufficient mature and objects to returning.
Preventing abduction
If you are concerned that someone may remove your child from the UK without your consent, it is important to seek urgent advice and take action as soon as possible.
If there is an immediate risk that your child is about to be taken abroad, you should contact the police without delay. In urgent cases, the police may be able to issue a Port Alert, which can notify relevant ports and airports and assist in preventing the child from leaving the UK.
If the situation is not immediately urgent, you may be able to apply to the Family Court for protective orders, including:
- a Prohibited Steps Order to prevent the child from being removed from the UK; and/or
- a Specific Issue Order requiring the child’s passport to be surrendered and held by a trusted person or organisation, such as solicitors
What is a Child Arrangements Order and how can it help?
It may also be helpful to have a Child Arrangements Order in place to provide clarity about the child’s living arrangements and each parent’s responsibilities. As a foundation, the Order will set out where the child lives and how they spend time or have contact with each parent.
It can also set out rules around practical arrangements relating to overseas or domestic travel, such as requiring the provision of the travel itinerary or details of the trip to the other parent in advance.
A Child Arrangements Order can also address other aspects of the child’s day-to-day living arrangements, such as:
- responsibility for the child’s daily expenses;
- how school holidays and special occasions are shared;
- how important decisions about education, healthcare and other aspects of the child’s upbringing should be made; and
- how disputes and communication between parents should be managed.
Having clear arrangements in place can reduce uncertainty and minimise the risk of conflict by ensuring that both parents understand their rights and responsibilities. If a person repeatedly breaches the order, this may amount to contempt of court and possibly lead to appropriate enforcement action.
Defences to abduction
If a child has been taken outside the UK without the appropriate consent, there are limited circumstances where a person may have a defence under the Child Abduction Act 1984. These include where:
- They believed that the other person with parental responsibility had consented, or would have consented if they had known all the relevant circumstances;
- They had taken all reasonable steps to communicate with the other person with parental responsibility but were unable to do so; or
- The other person’s refusal to consent was unreasonable (not applicable where there is a Child Arrangements Order, Special Guardianship Order or Prohibited Steps Order in place).
Whether a defence applies will depend on the specific circumstances of the case. If you are concerned about a potential child abduction issue or have taken a child abroad without the necessary consent, you should seek legal advice.
What factors will the Court consider?
When making decisions involving a child, such as whether a child should be allowed to travel abroad (Specific Issue Order/Prohibited Steps Order), or where a child should live (Child Arrangements Order), the court’s paramount consideration will always be the child’s welfare.
Under the Children Act 1989, the Court will take into account the following factors, known as the welfare checklist:
- the child’s wishes and feelings (taking into account their maturity and level of understanding);
- the child’s physical, emotional and educational needs;
- the likely effect on the child of any change in their circumstances;
- the child’s age, sex, background and any other characteristics that the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable each parent, and any other person involved in the child’s care, is of meeting the child’s needs; and
- the range of powers available to the court, including whether making an order such as a Prohibited Steps Order or Specific Issue Order would better safeguard the child’s welfare.
The Court’s decision in each case will be heavily dependent on the specific circumstances of that case, as the Court aims to make a decision that best protects that child’s interest. It is therefore best to seek tailored legal advice.
How can we help?
Issues involving children and international travel can be complex, especially where there are disagreements between the parents. Careful consideration of both the legal obligations and the child’s welfare is necessary.
Our Family Law team can help guide you through the process, including:
- advise on overseas travel;
- negotiating travel arrangements with the other parent;
- consulting on putting arrangements in place for children; or
- preparing applications for Child Arrangements Orders, Specific Issues Orders, or Prohibited Steps Order.
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