Summer holidays are the perfect time to arrange family holidays or visit relatives abroad. However, there can be legal implications of taking children out of the country that single parents or grandparents may not be aware of.
Questions we’re frequently asked include:
“Do I have to ask permission of their mother/father?”
“What if the mother/father refuses permission?”
“What if the mother/father refuses to return them?”
“I want to hang onto the passport – how do I do that?”
The first question to answer in this potentially complex area of law is this – who has Parental Responsibility (PR)?
A mother automatically has PR when the child is born. If the parents are married, then the father will also acquire PR at that time.
When the mother and father are not married, then the father can acquire PR in one of 3 ways:
- Registering on the birth certificate with the mother (since 2003)
- Through a PR agreement with the mother, or
- An order of the court
Divorce does not remove PR from either parent.
What happens when both parents have PR?
If you have the day-to-day care of the children, then you need the written consent of the other parent and anyone else with PR before taking the children abroad. This also applies when children are going away on their own, on school trips for example.
Should the other parent withhold consent, then you can apply to the Family Court on an emergency basis for a Specific Issue Order. The court can also deal with issues relating to the passport.
Conversely, if you are the parent who wishes to prevent the child being taken out of the country, you can apply to the Family Court for a Prohibited Steps Order (PSO), even if you don’t have PR. A PSO imposes restrictions on a parent from doing something in relation to a child.
However, if there is already a court order in place defining the arrangements for where the child lives, then you can take the children abroad for up to a month without the need for the other parent to consent.
Taking children abroad without consent
In all applications relating to children the child’s welfare is at the forefront of any decision by the court.
Taking a child abroad without the required consent may result in a criminal offence being committed under the Child Abduction Act 1984. Where there is a real and immediate threat that the other parent may try to take the child abroad without your consent, the court can take a number of urgent steps to prevent this from happening.
It is important to act quickly if a child has been removed without your consent to secure the child’s return.