Legal implications of separated parents taking children abroad


The Law Of… Separated Parents Seeking To Take Children Abroad

There are certain conditions separated parents need to consider when taking children abroad independently. It can be a stressful thing to organise and, if not done properly, can result in legal action.

Senior Legal Executive, Linda Norgate, looks at what needs to be considered how to take children abroad once separated.

What Do You Need To Consider When Taking Children Abroad?

Written consent may be required to take the child outside of the UK if both parents have parental responsibility and there are no specific orders in place preventing the removal of the child.

Evidence of parentship may be required, usually in the form of birth or adoption certificates. Divorce or marriage certificates are suitable if you are a single parent with a different surname to the child.

It is important to recognise that if there are no welfare issues with parents or extended family taking the child on holiday, then the parties should work together to promote the best interests of the child.  Communication between the separated parents is essential when considering holiday contact and providing the other with full details of the holiday.

What If consent Is Refused?

If consent is refused then an application to Court for permission will be required.

A parent can take a child abroad for up to a month if they have a Child Arrangement Order in place showing that the child lives with them.

Why Should I Make The Other Parent Aware?

It is best to agree holiday arrangements in advance to avoid misunderstandings. The time the child shall spend with the other parent if contained in a Court Order should always be made clear, and attestations of abductions and other applications to Court should always be considered.

Unless there are serious welfare concerns, or concerns that a parent may well seek to relocate abroad, then it is likely that the court will make an order that the child is allowed to go abroad on holiday.

When an order is made the court will most likely request the parent taking the child on holiday provide details on where the child will be staying, date of departure and return, and any other important details such as flight information and contact details.

What About Grandparents Or Extended Family?

Grandparents or other family members taking the child abroad will require written permission from both parents with parental responsibility. If the parent the child lives with has a Child Arrangements Order in place consent from both parties will still be required.

Family Court And High Court - When Is It Time For Which?

Specific Orders are issued through an application under the Children Act. These are normally heard by a District Judge at the Family Court.If the approved holiday requires the consideration of laws in foreign countries then the matter will go beyond the local family court and be dealt with by a Judge in the High Court.

If the High Court is involved specific orders may need to be implemented: 

  • Bond Orders. A sum of money is placed in a bond to be released upon the child’s return if there is concern over this
  • Mirror Orders. An order made in England and Wales Courts which is also a registered order in the none–Hague country where the child is to be taken on holiday

There have also been cases brought before the High Court where family members, not just the person taking the child abroad, have been required to enter into a solemn declaration guaranteeing the safe return of the child.

The Process In Action

Linda Norgate,(Position at SM), gives us an example below of the trials and tribulations separated parents face when disputing each other's right to take their child abroad.

A British father and Kenyan born mother were married in Kenya, with the mother subsequently acquiring a British Citizenship. There was one child of the marriage who was age 10 at the time of the hearing in the Court of Appeal.

The mother sought permission to go on holiday to Kenya with the child, which was opposed by the father who asserted that there was a risk of abduction. The case was transferred from the Family Court to the High Court.

After a three day hearing, the mother was granted permission to go on holiday to Kenya. The decision was made by The Deputy High Court Judge after hearing the parties oral evidence, supplemented by written evidence from a Kenyan solicitor with regard to remedies available in Kenya to secure the child’s return.

Honour Judge Oliver decided that the risk of the mother failing to return was not great as she enjoyed the benefits of living in Britain.  He held that in principle the mother ought to be able to remove the child to go on holiday to Kenya, but that safeguards were necessary to reassure the court and the father. 

The issue was however that the mother did not have the funds to pay a bond to the court to ensure the child's return, nor was it affordable for the father to bring the proceedings to Kenya.

It was decided the mother could hand her and the child’s passport to the British High Commission in Kenya, followed by her signing a notarized agreement that she would return to the UK with the child at the end of the holiday. Permission in principle would be granted to remove the child from the jurisdiction for a holiday, but she was required to lodge a notarized agreement to obtain a confirmation of their willingness.

The agreement would then be lodged with from the Kenyan High Commission in London, who based on their acceptance, would then hold the passports.

Linda went on to explain that whilst the mother did file the notarised agreement, the High Commission in Kenya indicated that it would return the mother’s passport to her in the event of her requesting it back.  At a further hearing, the Judge decided that this notarized agreement was suitable security for the child to be taken abroad.

The father proceeded to appeal to the Court of Appeal.

The High Courts Reaction

Lord Justice Patten stated that: “the overriding consideration of the Court in deciding whether to allow a parent to take a child to a non–Hague Convention Country is whether the making of that Order would be in the best interest of the child."

He went  on to specify that applications of temporary permission to remove the child to a non–Hague Convention Country would involve consideration of three related factors:

  •  The magnitude of the risk of breach of the order if permission is given.
  • The magnitude of the consequence of breach if it occurs.
  • The level of security that may be achieved by building into the arrangements all of the available safe guards.

Lord Justice Patten held that his Honour Judge Oliver had failed in his decision to allow the child to travel as the second and third aforementioned factors were not addressed.  Thereafter the appeal in favour of the father was allowed.

If you are currently struggling to reach an agreement with an ex-partner in regards to taking your child abroad, or feel unsure about allowing your child to travel with an ex-partner, Simpson Millar has an experienced Family Law Team on hand to offer guidance. Contact us today on our freephone number or by using our online enquiry form.

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