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Foreign travel with children, what you need to know

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“If you want to see the sunshine, you have to weather the storm”

By Emma Davison – Solicitor specialising in all aspects of family law

Foreign travel with children

As the #BeastfromtheEast brings heavy snow and freezing temperatures across the country, what better a time is there to consider travelling abroad to sunnier climes?  As Easter comes fairly early this year and before long we will be at the school summer break, why not plan that well deserved trip for the family but in doing so, heed this cautionary warning if you are planning on travelling abroad with your children.

Travelling abroad with children can be an extremely rewarding experience that creates long lasting and fond memories for both parent and child but if you are travelling as a single parent or with someone else’s child it is one which can quickly end prematurely if the correct legal preparations for the holiday have not been made.

Before taking a child abroad, it is important that either permission for the trip is first secured from everyone who shares “parental responsibility” for the child or, in the absence of permission being granted, that a court order permitting the removal of the child from the jurisdiction is obtained.  To remove a child in any other circumstances could amount to the criminal offence of child abduction being committed.

So, what is parental responsibility and who has parental responsibility?

Parental responsibility is defined in the Children Act 1989 as being

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In reality, the most important roles that having parental responsibility brings is to provide a home for the child, protect and maintain him/her.  It does however also cover a number of other responsibilities including the right to discipline the child, choose the child’s place of education or name by which the child is known, consenting to the child having medical treatment and, in this instance, whether the child does or does not travel abroad.

A mother automatically has parental responsibility for her child from birth.
A father usually has parental responsibility if:-

(a)        He was married to the child’s mother either at the time of the child’s birth or subsequently; or

(b)        He was listed on the child’s birth certificate as the father (applicable only for births on or after 1 December 2003).

If you are not the child’s mother but are connected to the child (eg. as their father, step-parent or 2nd  female parent) you can acquire parental responsibility by:-

(a)        Entering into a properly documented, written parental responsibility agreement with the agreement of everyone else who already has parental responsibility and which is ultimately filed at the Principal Registry of the Family Division; or

(b)        Obtaining a court order, the effect of which would be to award, either directly or indirectly, parental responsibility.

Parental responsibility can be shared by a number of people and when considering travelling abroad with a child, it is important than everyone with parental responsibility for the child has been consulted and given consent (ideally given in writing) to the child’s removal from the jurisdiction before the trip occurs.

The only exception to this is if there is a court order in place.  This could be either:-

(a)        A court order specifically permitting the child being removed for the purpose of the intended trip; or

(b)        A court order naming the person wishing to travel abroad with the child as the person with whom the child normally resides.  In such cases, that person can remove the child from the jurisdiction for anywhere up to one month at any time without needing permission of the others with parental responsibility or a further order of the court.

If you need to make an application to court, always remember to allow sufficient time for this to be dealt with.  Don’t leave it to the eve of your holiday!

Save for in cases of real urgency, after a court application has been issued you are likely to have to wait anywhere between 4 to 6 weeks before you reach the initial court hearing.  Even then there is no guarantee that the case would be resolved at that hearing and further court hearings or evidence may be needed.  The best advice is therefore to remember to get the legalities sorted as early as you can because a lack of planning on your part does not necessarily constitute an emergency on the court’s part.  If you have left it very late to apply to court, having known about your proposed trip a lot earlier, then don’t be surprised if the court does not offer you much sympathy.

On a final point, it is also worth bearing in mind that if you are travelling to another country with a child and are not that child’s parent, or if you and the child have different surnames, you may need to bring extra documents with you to establish your relationship to the child and ensure that the transition in and out of the country is as smooth as it can be.  Such evidence might include a copy of a birth or adoption certificate showing your relationship with the child; divorce or marriage certificates if you are the child’s parent but have a different surname; or a letter from one or both of the child’s parents, with contact details, giving consent for the child to travel with you if, for example, you are the child’s grandparent and even if you share the same surname.

Correct as of 28/2/18

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