There are a number of issues to consider when thinking about taking your child abroad. There is a significant difference in approach depending on whether you want to simply go on holiday and how long that might be for, in comparison to actually going to live in a different country. Depending on the family dynamic and background, there can be enhanced risks in abduction if the travel has not been agreed, especially if one parent has close family ties in another jurisdiction.
Topics to be answered in this article
What does the law say about taking a child abroad?
When someone (it may not just be the other biological parent) has Parental Responsibility for a child, part of that responsibility enables you to take a child out of the jurisdiction, whether temporarily for a holiday, or to live permanently.
As Parental Responsibility is shared with the other holder, you must ensure that the other person has no objections to the travel, so that you aren’t faced with problems agreeing this after costs have already been incurred in making that arrangement. There may also be other practical issues to consider, such as whether the airline requires paperwork from the other parent confirming consent for that travel, if you are travelling alone.
If, however, you have the benefit of a Court Order stating that a child lives with you and spends time with the other person (Child Arrangements Order), you are able to take the child abroad for up to 28 days without consent. There is no limit to how many separate times you do this, but it is always best practice to notify the other parent regardless, in the event of any emergencies. There may also be provision for such communication within the court order anyway.
If there is no court order in place recording the living arrangements of the child and/or parameters of travel, consent must still be obtained. If not provided, an application to court will be required in order to obtain permission, even if for temporary travel. You also face the risk that the other holder(s) make an application to court with concerns of abduction or to prevent the travel occurring.
What does the law say about taking a child to live abroad?
If you wish to move permanently abroad with your child in the absence of the other parent/individual with parental responsibility, this is known as “external relocation”.
It is imperative that you seek consent from the other Parental Responsibility holder(s) in writing and if necessary, address the alternative child arrangements that will be put in place moving forwards. If consent is not provided, a formal application to the court will be required for “leave to remove”.
The court will then consider a number of factors before deciding whether to grant permission. The child’s welfare will be the court’s paramount consideration. The criteria for permanent removal, will assess the following welfare checklist criteria:
- The wishes and feelings of the children concerned so far as they can be ascertained, and bearing in mind each child’s age and understanding
- The children’s physical, emotional and educational needs
- The likely effect on the children of any change in their circumstances
- The children’s age, sex, background and relevant characteristics
- The risk of the children suffering harm, and
- How capable each parent is of meeting the children’s needs
The judge will consider how permission or refusal to relocate will affect the parents and the children and will consider the parents’ plans and whether the wish to relocate and opposition to it are genuine.
Failure to do so, will put you at risk of allegations that you are abducting that child, and will result in contested children act proceedings.
What legal rights does a parent have if they object?
If you have a suspicion that one party may seek to relocate or temporarily leave the jurisdiction without your consent, you can make an application to the court for a Prohibited Steps Order. The same principles will be applied, when considering the child’s welfare and if there is any risk in either granting the permission to leave or in the granting of the order that would prevent the travel.
Prior to reaching the point of contested court proceedings, unless in urgent abduction cases, the court will expect the parties to try and resolve the disagreement between themselves if possible. This can be achieved through other means of dispute resolution, such as attending mediation or through the assistant of legal support. A parental agreement or court order can be agreed by consent, without the need to embark upon costly and contested proceedings.
What is the process for getting a child back if they have been taken abroad?
Child abduction is when a child under the age of 16 is taken out of the UK without the consent of all those with Parental Responsibility. The procedure will vary depending on which country you suspect your child has been taken to and so tailored advice will be required. The UK has an agreement with multiple countries under the 1980 Hague Convention on international Child Abduction. An urgent application to the court can be made for a return order, but there can be procedural complexities in enforcing this which are beyond the scope of this article.
How can Goughs help?
We can help you to navigate any concerns you have as to risk of abduction and support you to resolve these, but action must be taken at the earliest possible stage. We can also advise you as to the appropriate procedure required in obtaining consent and if this is needed, in respect of both internal (within the UK) or external relocation, or a temporary plan to travel on holiday. Get in contact with us today.
