There is a certain level of confusion around the legal implications of taking your children abroad if you are divorced or separated. This article attempts to address some of these concerns and provide you with a point of contact for further information.
The first thing that needs to be considered when it comes to a child travelling abroad is, who has been granted parental responsibility (in other words, who has custody of the child?). If both parents have joint custody, then neither parent can take the child on holiday outside their country of residence without the other parent’s consent. If consent is refused, an application for permission needs to be made to the Court.
The situation is different where one parent has full custody of the child. In these cases, the parent with custody can take a child abroad for up to a month without the written consent of the other parent. However, it is always a good idea to agree to arrangements in advance, giving the other party a chance to voice any reasonable concerns. This can also avoid misunderstandings, problems with contact, accusations of abduction and other applications to the Court.
In the normal course of events, permission for a child to go abroad on holiday is invariably given by a Court. Often details are required, stating where the child will be staying, giving the date of departure, return and details of flights along with contact telephone numbers. If, however there are suspicions that the child will not be returned, especially if the child is going to a non-Hague Convention Country, then security will be necessary.
These securities may include mirror orders, notarized agreements and significant sums of money placed in a bond to be released upon the child’s return. There have also been cases where family members, not just the person taking the child abroad, have been required to enter a solemn declaration guaranteeing the safe return of the child.
Concerns of abduction
It’s not uncommon, especially in families that have connections abroad, for the non-custodial parent to fear that their child will not return after their holiday. These doubts may arise at any point prior to the child leaving on holiday. If there is an immediate risk, the relevant authorities must be informed and port alert may be required.
If there is time to secure an application to the Court for an order prohibiting the removal of the child from the jurisdiction without notice being given to the other parent, this should be done quickly as it can be crucially important to prevent the child leaving the country. Any delay in an application can result in the child being taken out of the jurisdiction and may then result in great difficulty in locating the child and securing their return.
Nevertheless, if it is known that the child has been taken to a country within the European Union there are considerable resources and facilities in place to track and locate a child in the hope of securing a return before departure to the rest of the world.
A parent needs the permission of the other parent or a Court Order to take a child permanently abroad. This is known as a relocation application or leave to remove.
In some cases, it is appropriate to oppose the relocation application but in others it may be wise to consider putting energies into legal representation to ensuring very good future contact before the relocation proceeds.
When considering opposing relocation applications it is essential to consider all aspects of a child’s life. The Court will hear evidence as to the child’s educational progress, family and support network, activities that they are involved in along with the impact of losing contact with the wider family. Consideration will also be given by the Court as to what more could the one parent offer the child if they continue to reside in this jurisdiction. Even if a child has been permitted to go abroad, certain safeguards can be put in place to ensure that good contact continues. This may include extended staying contact during the school holidays and consideration as to travel arrangements, the use of emails and web cams.
Many children go abroad on holiday to visit family and friends or indeed to emigrate and it is a positive experience for them. Ultimately wherever the child is residing, it is usually in the best interests of that child to have regular, quality and contact with both parents. If this is an issue that you require further assistance or advice on, please contact Kennedy Partners Lawyers today.