Travelling with Kids Post-Divorce: A Legal Checklist
Taking your children on an international holiday should be an exciting experience, not a source of legal stress. However, for separated parents in the UK, crossing international borders requires careful preparation and a clear understanding of family law. If you share parental responsibility, you cannot simply book a flight and leave; you must secure the correct permission first.
This guide explores how to navigate international travel with children, including when you need to apply for temporary leave to remove and how the family court views these requests.
Can I Take My Child Abroad?
Yes, you can take your child abroad, but generally only if you have the consent of everyone with parental responsibility or a court order granting permission.
Taking a child out of the UK without this permission is a criminal offence under the Child Abduction Act 1984. While this sounds severe, the law exists to protect children and ensure that one parent does not unilaterally alter a child’s living arrangements or remove them from the jurisdiction without agreement.
To ensure your holiday plans go smoothly, you must determine if you need permission and, if refused, how to obtain it through the courts.
Understanding Parental Responsibility and Permission
Parental Responsibility (PR) refers to the legal rights, duties, powers, responsibilities, and authority a parent has for a child. In the UK, mothers automatically have PR. Fathers usually have PR if they are named on the birth certificate (after December 2003) or were married to the mother at the child’s birth.
If both parents have PR, you must obtain consent from the other parent before taking the child out of the jurisdiction (England and Wales). This consent should ideally be in writing to avoid disputes at border control.
The Exception: The 28-Day Rule
There is a significant exception to the requirement for written consent. If you have a child arrangement order stating that the child “lives with” you, you are legally permitted to take the child abroad for up to 28 days without needing written permission from the other parent.
However, relying solely on this rule without communication is rarely advisable. Open communication helps maintain a co-parenting relationship. Furthermore, a court order may contain specific prohibitions preventing travel, so you must always check the precise wording of your order.
Even with a “lives with” order, it is good practice to provide the other parent with travel details, including flight numbers and accommodation addresses. This transparency reassures the other parent that the trip is genuine and temporary.
What If the Other Parent Refuses Consent?
Disputes often arise when one parent wishes to travel, but the other objects. Common reasons for objection include concerns that the child will not be returned, worries about the safety of the destination, or fears that the travel will interfere with the child’s education or the other parent’s contact time.
If the other parent refuses to give consent and the 28-day rule does not apply to you, you cannot travel. Your next step is to apply to the court for a “Specific Issue Order”. This order effectively grants you temporary leave to remove the child from the jurisdiction for the purpose of the holiday.
Applying for Temporary Leave to Remove
To apply for a Specific Issue Order, you must submit a c100 form to the family court. This application asks the court to resolve the dispute by making a decision on your behalf.
Before applying, you are generally required to attend a Mediation Information and Assessment Meeting (MIAM). Mediation offers a chance to reach an agreement without the cost and stress of court proceedings. However, if mediation fails or is unsuitable, the court process becomes necessary.
Timing Is Critical
You must file your application well in advance of your planned travel dates. The UK family court system is currently facing high demand. According to government statistics from late 2024, it takes an average of 41 weeks for private law cases to reach a final order. While urgent holiday applications can sometimes be heard faster, leaving it to the last minute creates unnecessary risk.
How the Court Makes a Decision
When you apply for temporary leave to remove, the court’s paramount consideration is the welfare of the child. They will apply the “Welfare Checklist” from the Children Act 1989 to determine if the holiday is in the child’s best interests.
The court will look at several factors, including:
- The purpose of the trip: Is it a genuine holiday?
- The destination: Is the country a signatory to the Hague Convention? (This affects the legal mechanisms available to return a child if they are abducted.)
- Safeguards: What security can be offered to ensure the child returns? This might include providing return tickets or depositing a sum of money.
- Impact on the child: Will the trip disrupt their education or contact with the other parent?
Historically, the courts have been slow to prevent a parent from taking a child on holiday unless there is a genuine risk of abduction or harm. The general view is that spending quality time with a parent on holiday is beneficial for a child.
Practical Steps for Travelling Parents
To maximise your chances of a stress-free trip, follow these practical steps.
- Start Early: Discuss holiday plans with your co-parent months in advance.
- Get It in Writing: If the other parent agrees, ask them to sign a letter of consent. This letter should include their contact details and confirmation that they agree to the specific travel dates and destination.
- Check Your Documents: Ensure you have copies of your child’s birth certificate and any relevant court orders. If you have a different surname from your child, these documents are essential for border control.
- Seek Legal Advice: If you anticipate an objection, speak to a solicitor immediately.
Recent Trends in Family Travel Disputes
The landscape of family law is shifting. Recent data suggests a 5.3% increase in private law children’s cases in late 2024 compared to the previous year. This rise indicates that more parents are turning to the courts to resolve disputes over arrangements for their children.
With the courts busier than ever, the emphasis is increasingly on alternative dispute resolution. However, when a holiday deadline is looming and agreement cannot be reached, the C100 form remains the primary legal route to securing your travel plans.
Value of Professional Guidance
Navigating these legal requirements can be daunting, especially when you simply want to enjoy a break with your children. Missteps can lead to delays, financial loss on booked holidays, or even criminal investigations if proper consent is ignored. Whether you need help drafting a consent letter, applying for a Specific Issue Order, or defending against an application, get a team that will support you.
