The children have now broken up from school for the summer and you may be busy running around making last minute preparations for your annual family holiday abroad. As well as making sure that emergency first aid kit is still in date and that the passports have not expired, make sure that you have obtained the appropriate consent for removing a child temporarily outside the UK.
The Child Abduction Act 1984
It is a criminal offence to remove a child under the age of 16 from the UK without first obtaining the consent of each of the following:
- A child’s mother;
- A child’s father (if he has parental responsibility);
- Any guardian of the child;
- Any special guardian of the child;
- Any person named in a child arrangements order (CAO) as a person with whom the child shall live;
- Any person who has custody of the child; or
- Obtaining the leave of the court.
The offence is punishable by imprisonment.
Holiday consent for children – when is it required?
It is not necessary to obtain such consent if you are named in a CAO as a person with whom a child is to live and you take or send a child out of the UK for less than one month providing this is not in breach of any court order. This period is extended to three months if you are a special guardian of a child.
If you do unilaterally remove a child from the jurisdiction without first obtaining the appropriate consent, you may not have committed an offence if you do so in the belief that any relevant person has consented or would have consented if they were aware of all the relevant circumstances. The same is true if you have taken all reasonable steps to communicate with any other relevant person but have been unable to contact them or the other person has unreasonably refused to consent.
The defence on the grounds of unreasonable refusal to consent does not apply if the person refusing the consent is a person named in a CAO as a person with whom the child is to live, or is a special guardian, or if the person taking or sending the child out of the UK is acting in breach of a court order.
Removal where there is no Child Arrangement Order in force
Where there is no CAO in force which regulates the living arrangements for a child, consent should be obtained from each person with parental responsibility before you take them out of the UK. In the absence of consent, permission should be obtained from the court.
Removal when there is a Child Arrangement Order in force
Where there is a CAO in force that regulates the living arrangements for a child, no one can remove the child from the UK without either the written consent of every person who has parental responsibility for the child or the leave of the court. However, as mentioned above, the person (or persons) named in a CAO as someone with whom a child is to live is permitted to remove the child from the UK for a period of less than one month. This allows for holidays or other trips abroad without the need to seek the consent of any other person or permission of the court.
There are no limits to the number of temporary removals of less than one month.
What happens if consent is refused?
Where the other parent (as is usually the case) does not consent to the holiday, it is open to them to apply for a prohibited steps order to prevent a child from being removed from the jurisdiction. In the alternative, the parent wishing to take the child on holiday may apply for a specific issue order from the court seeking permission to temporarily remove a child from the jurisdiction.
The destination and duration of the holiday will be significant factors.
In making a decision the courts paramount consideration is the welfare of the child and it will have regard to a range of other factors to ensure that everything is taken into account.
Where the destination of a holiday is to a country that is not a member of The Hague Convention on the Civil Aspects of International Child Abduction (where there are reciprocal arrangements in place for the return of abducted children), it may be appropriate to put in place certain safeguards to ensure a child is properly and promptly returned. For example, a child’s passports could be lodged with a lawyer of the destination country for the duration of the holiday and/or a ‘mirror order’ could be obtained in the destination country ordering a child to be returned to the UK by a certain date.
If your circumstances mean that you require consent before taking a child abroad, even if for a short summer holiday, make sure you provide all relevant parties with sufficient notice of the holiday along with flight, accommodation and emergency contact details.
If consent to the holiday is not forthcoming then consider making an application for a specific issue order to the court in good time.
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