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It is very important to be aware that a parent does not automatically have the legal right to take their child or children abroad unless they have the consent of the other parent or any other party with parental responsibility or a court order allowing the journey abroad. In fact removing a child from the UK without the necessary consent or court orders may be a criminal offence under the Child Abduction Act 1984 or a civil infringement under the Child Abduction and Custody Act 1985.
Child Arrangements Orders/Residence Orders
The situation is different where one parent has a Child Arrangement Order stipulating that the child lives with them (previously known as a residence order). Under the terms of these orders, it includes permission from the Court for that parent to be able to take a child abroad for up to a month without requiring the written consent of the other parent. However, it is good parenting to endeavour to agree the arrangements in advance. Even if you are in possession of a Child Arrangements Order, visits abroad for more than one month still need the consent of the other parent or another specific court order.
If the mother alone has parental responsibility and there are no court orders concerning the child, permission is not strictly needed to take a child abroad on holiday. However, again it is responsible parenting to consult and reach agreement with the other parent. Of course, this does not stop a father without parental responsibility applying for parental responsibility and then objecting to the temporary removal of the child.
If you are separated with children then it is very important that you approach such situations very carefully and with proper legal advice.
If you do wish to take your child or children abroad on holiday then you should approach the other parent for their consent. You should give the other parent details of the full itinerary, addresses and emergency contact information and giving the other parent as much notice as practicable on your plans. We recommend three months’ notice for discussions regarding lengthy summer holidays and a minimum of two months’ notice for periods of one week abroad.
We recommend that where there is history of lack of trust between parents that the arrangements are set down in writing between solicitors so that there are no misunderstandings. If the consent to the journey abroad is not forthcoming, then an application to the Family Court for a court order may be necessary. It is best to make such an application in plenty of time.
If there is anything unusual, acrimonious or complicated in your relationship with the other parent please obtain legal advice urgently.
If you are the children’s primary carer and you wish to relocate from England and Wales to either Northern Ireland, Scotland or abroad, it is very important that you seek legal advice from a specialist family law solicitor at the earliest practicable opportunity in your planning. We would also recommend that even if you seek to relocate away from the children’s usual geographical location within this country, that you seek legal guidance. Any major relocation of children can lead to serious and sustained parental conflict and disagreement, which may harm the children.
If you are planning to move abroad then this will have a long-term impact on the other parent’s relationship with the child. Although modern methods of communicating by “Skype” and “FaceTime” may assist, they are obviously not equivalent to the actual contact normally enjoyed by the other parent through seeing the children and having them to stay and you may well encounter resistance to your plans. In that instance, the matter will probably have to be considered by the Court.
No parent, even one with the benefit of a Child Arrangements Order, can relocate abroad without the consent of the other parent unless they obtain a Court Order to allow them to remove the child to the new jurisdiction. If the wrong decisions are made in haste or panic, then the parent trying to move abroad can be accused of and potentially found guilty of the offence of child abduction. They can also lose the primary care of the child or children. It is vital therefore, that expert legal assistance is given at all stages of the arrangements.
If you wish to move abroad, we recommend that you instruct a family law solicitor to negotiate the arrangements on your behalf in order either that there is clear evidence of the other parent’s consent or to assist you in making the application to a judge for their consideration. You may alternatively wish to invite the other parent to discuss your plans in mediation.
It is very important to understand that if you remove a child abroad against the law and without the necessary consents or appropriate court orders that the child may be made a Ward of the High Court (Principal Registry of the Family Division) and directions made by that court for the child’s return together with sequestration (freezing and removal) of any of your assets left in this jurisdiction. Applications are likely to be made by the other parent through legal and diplomatic channels for the child’s return to the UK from the country to which the child has been taken.
Most international jurisdictions follow the principle that it is nearly always necessary and right for decisions regarding a child’s place of residence to be made in their country of habitual residence. This principle is of particular importance to countries that are parties to the Hague Convention on the Civil Aspects of International Child Abduction 1980 and which have incorporated that Convention into their domestic law. The United Kingdom is a signatory.
Our solicitors have particular expertise in dealing with such matters and should further information or advice be required, please contact Deborah Prance, Andrew Kingston, Tatjana Williamson or Amanda Dodge on 01252 316316.