We all love to get away in the summer months, and that is even more so when we have children. Before you go, have you considered whether you can legally travel with your child? I hope by the end of this article, you as a parent, will better understand the law and how to approach travel when co-parenting as separated parents.
So, what does the law say on this?
Where parents share parental responsibility for a child, the consent of both parents is required for a child to travel outside of England and Wales. If you do not get consent, this could be considered as Child Abduction, so it is not something you want to overlook. I would always recommend getting consent in writing.
However, if you have a Child Arrangements Order, the situation may be different. For example, if the order directs the children ‘live with’ you, then you are entitled to take the children out of England and Wales for up to 28 days without seeking the consent of the other parent. Alternatively, some orders will include a Specific Issue Order, which deals with travel. Many such orders will have linked provisions relating to notifying the other parent of your plans, so do check before you go.
Good practice in my view is to raise travel abroad with the other parent as soon as possible, even if you haven’t fixed your plans yet. Let them know what you are planning and ask them to confirm that they consent. Once you have that consent, keep them in the loop by providing flight and accommodation details.
Turning to a few different scenarios:
Scenario 1 – Travel within England and Wales
You are free to travel throughout England and Wales with your children without the consent of the other parent. It is always best practice to let the other parent know where you are going and for how long.
Scenario 2 – Travel to Scotland
Although part of the UK, Scotland is considered a separate jurisdiction for these purposes, so consent is required.
Scenario 3 – Travel to Spain, Europe or further afield
Again, consent is required as you are travelling to a different jurisdiction.
But what if consent isn’t forthcoming, I hear you ask. The starting point is to try and understand the reasons for refusal. It may be that there are assurances you can give the other parent which allay their concerns. Alternatively, depending on the age of the children, child-inclusive mediation might be worth considering. Perhaps hearing how much the holiday means to your children will change the other parent’s view. Early legal advice can help guide you to a swift resolution with the aid of non-court dispute resolution.
Sadly, you may find that you need to ask the court to step in, and I would suggest it is at this stage you must obtain legal advice. The earlier you make your application to the court, the more likely it is that you will be able to get a hearing in time for your holiday. You don’t want to find yourself at risk of not being able to travel, losing your booking and money, because the courts are overwhelmed and cannot fit your hearing in before your travel date.
The court will be considering what is in the best interests of the children, and generally, travelling abroad, experiencing new cultures and traditions, especially if it is a country with which the children have links, will be seen to be in their best interests. However, there will need to be some consideration of the country you are travelling to, the safety of that country and if the other parent is suggesting you might not come back, what mechanisms are in place between that country and England to secure a return, for example, are they a signatory of the 1980 Hague Convention on Child Abduction.
Conversely, if you are the parent who is refusing consent, I would suggest you seek legal advice to understand how the court might view your objections and if necessary and appropriate, take swift action to obtain orders to ensure the children cannot be removed from the jurisdiction of England and Wales.
My top tip, as always, is open dialogue with the other parent as early as possible. This not only allows you to book early and save money if consent is forthcoming, but it also allows you the time to achieve a resolution in the event consent isn’t forthcoming or there is good reason to seek to prohibit travel outside of England and Wales.
