Personal Law

Travelling with children after separation or divorce

June 9, 2021

If you are thinking of going on holiday or a trip abroad with your child/ren and you are separated or divorced from your partner and not residing together, it is important to understand the implications that travelling abroad may have, what you need to know before you travel and how you can seek legal advice when you need it.

Before you travel abroad with your child/ren, you will need to obtain permission from all persons who hold parental responsibility for the children.  


What is parental responsibility?

Being granted parental responsibility ensures that a parent or other person whose acquired PR has powers and authority in relation to their child by law. 

In law, the mother of the child will always have parental responsibility. However, the law does not apply in the same way to the father of the child and therefore there is a difference between how fathers married to the child’s mother and fathers not married to the child’s mother are viewed under law.

A father who is not married to the mother of the child does not automatically gain parental responsibility for the child. However, a married father does, and divorcing does not mean that the father loses that parental responsibility. 

A father who is not married to the mother of the child can gain parental responsibility in certain situations, such as when he enters into a Parental Responsibility Agreement with the mother and it is filed in the Family Division of the High Court, when a court order is obtained which grants him parental responsibility, if he is named in child arrangement orders from court as who the child should live with, or if he is named as the father on the child’s birth certificate for births registered from 1st December 2003.


What do I need to do if I want to travel abroad with my child/ren?

It is strongly recommended that each parent should talk with each other before deciding to take a child on holiday or a trip abroad as it will likely go some way to minimise any concern on behalf of the other parent.

When both parents have parental responsibility, neither are able to take the child abroad without the permission of the other parent unless a court is involved and makes arrangements for the child to live with the other parent, or if the court decides the child can be taken abroad.

It’s important to note that if a parent takes the child abroad without the consent of the other, they are at risk of committing child abduction.


No consent?

If the other parent does not consent to you taking the child abroad, then you will need to go to court to obtain an order allowing you to go abroad with the child, known as a Specific Issue Order. The court will deem whether the holiday is in the best interests of the child and a number of welfare factors will also be taken into account to inform the court’s decision.

If you do not consent to the other parent to take your child abroad, you need to contact them to let them know as soon as possible. You would be able to apply to the court to prevent the child/ren from leaving England and Wales, which is also known as gaining a Prohibited Steps Order. If you think the child may be taken abroad with a view to not being returned, it is imperative that you make an urgent application to the court in order to minimise the chance of abduction of the child/ren.

If consent is granted

If consent is gained between the parties, then it is good practice to ensure that written consent between the parents is provided when it comes to agreeing that the child can go abroad – a letter or an email would suffice, setting out details about the holiday or trip abroad, including dates of departure and return, location of stay and contact details of the parent. The parent travelling with the child should keep a copy of the letter or email on their person at all times.

Getting legal advice

Ensuring you have taken appropriate legal advice before taking your child/ren abroad, or if you are concerned about the other parent taking them abroad, is vital from the very start. Get in touch to make an appointment with a member of our family law team of solicitors