When it comes to making decisions about taking a child abroad following a divorce or separation, one of the first matters to understand is the concept of parental responsibility. In the legal context of England & Wales, parental responsibility refers to the legal rights, duties, powers, responsibilities, and authority a parent has for a child. This includes decisions about the child’s education, medical treatment, and critically, travel.
Typically, the biological mother automatically has parental responsibility from birth. A father will also have it if he is married to the mother at the time of the child’s birth or, in cases of unmarried parents, if he is registered on the birth certificate (post-1 December 2003) or subsequently granted parental responsibility via a court order or formal agreement.
Following a divorce, both parents usually retain parental responsibility, unless it has been formally removed by a court order – which is rare. Consequently, when one parent wishes to take the child on a holiday abroad, the consent of everyone with parental responsibility is legally required.
The Legal Landscape of International Travel Post-Separation
It is a criminal offence to remove a child from England & Wales without the appropriate consent or permission from the court if required. This means that if a person wishes to take their child abroad, and they do not have the other parent’s permission where it is needed, they may be committing child abduction under the Child Abduction Act 1984.
However, this legislation also recognises that not every trip abroad is nefarious or intended to disrupt parental relationships. Therefore, a structured legal framework exists to help resolve disagreements concerning international travel – including specific court applications and court orders.
What If There Is a Child Arrangements Order in Place?
A key consideration is whether there is an existing Child Arrangements Order (CAO) made under section 8 of the Children Act 1989. A CAO may specify with whom the child is to live (also known informally as a residence order) and with whom they are to spend time or otherwise have contact.
If a parent has a CAO stating that the child lives with them (“lives with” order), then that parent can legally take the child abroad for up to 28 days without the written consent of the other holders of parental responsibility. This exception allows for a degree of flexibility and autonomy when planning holidays, provided the other provisions of the court order are not breached.
However, this doesn’t mean communication can or should be overlooked. Even when legally permitted, a cooperative approach with the other parent will help maintain good parenting relationships and minimise the potential for disputes arising upon the child’s return.
If there is no resident CAO or other order giving this right, or if the trip is intended to last longer than 28 days, then the consent of all persons with parental responsibility is still necessary or, failing that, approval must be sought from the family court.
When Consent Is Needed – And How To Get It
Where neither parent has a “lives with” order or where the planned trip exceeds 28 days, the parent proposing the holiday must get permission from every other person with parental responsibility. Ideally, this is done through written agreement to avoid misunderstandings. An email or text may be acceptable, but a letter with dates, location, and clear permissions offers stronger clarification and fewer grounds for later challenges.
In some cases, relationships post-divorce may be strained, and correspondence difficult. It may be helpful to involve a family mediator to help negotiate and formalise the arrangements. Mediation can avoid the escalation of conflict and provide a constructive space for agreement.
However, if the non-travelling parent refuses to give consent and mediation proves unsuccessful or inappropriate, the parent wishing to travel must apply to the Family Court for a Specific Issue Order. This is an order made under the Children Act 1989, which asks the court to determine a specific question concerning the upbringing of a child – in this case, whether the child should be allowed to go abroad for the holiday.
Preparing a Strong Court Application: What to Expect
When applying for a Specific Issue Order, the applicant must file a C100 form with the family court. It is important to clearly explain why the trip is in the child’s best interests. The court’s paramount consideration is always the welfare of the child, and the application should be tailored around the welfare checklist under section 1 of the Children Act.
Factors that the court will consider include:
– The child’s wishes and feelings (considering their age and understanding)
– The child’s physical, emotional, and educational needs
– The likely effect on the child of any change in circumstances
– The child’s age, sex, background, and any characteristics they consider relevant
– Any harm the child is at risk of suffering
– The capability of each parent to meet the child’s needs
Therefore, providing evidence that the holiday is safe, well-planned, and will not unreasonably interfere with the child’s usual routines or impact their relationship with the other parent will greatly assist the application. Practical details such as flight bookings, accommodation, contact arrangements during the trip, travel insurance, and return information are crucial.
In many cases, the court recognises the value of travel and experiences abroad for children, especially where the trip is clearly defined, and arrangements have been made to keep both parents informed and involved. However, if there is a genuine risk the parent may not return with the child, or where the child’s security is jeopardised by the destination country (especially if it is not a Hague Convention signatory), the court may refuse the request.
Addressing the Risks: Preventing Dishonest Travel Plans
One common theme in contested applications is the concern that the travelling parent may not return the child. This often arises where the parent has ties to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This convention provides a mechanism for seeking the prompt return of abducted children to their home countries, but non-signatory countries may fall outside the reach of UK enforcement.
When these fears arise, either before the child is taken or upon return, the non-travelling parent may seek a Prohibited Steps Order – an order made under the Children Act to prevent a parent from carrying out a specific action without the court’s permission, such as travelling abroad with the child.
To mitigate these concerns in advance, a parent proposing the holiday should proactively provide details including:
– A full itinerary, including flight and return details
– Contact information while abroad
– Copies of travel insurance and medical cover
– Assurance of return by a particular date
– Undertakings to the court or the other parent, if required, confirming the intention to return
Legal professionals may also recommend the implementation of mirror orders where the holiday destination is a jurisdiction with reliable legal reciprocity. A mirror order replicates the content of a UK court order in the foreign jurisdiction, offering an additional layer of enforceability should disputes arise abroad.
Dealing with Disagreements Constructively
Even when court involvement is not required, it is essential to approach the issue collaboratively and respectfully. Co-parenting after divorce often involves compromise, and international travel is an area where parents should ideally support each other in encouraging enriching experiences for their child – as long as they do not hinder the child’s other essential family relationships.
If the other parent refuses to consent based on legitimate scheduling conflicts (such as during term time, interfering with contact arrangements, or coinciding with special events), then a flexible approach is necessary. Adjusting trip dates or suggesting compensatory arrangements of missed contact can help resolve disputes.
It is also useful to be transparent about your motivations. If a parent believes travel is being used to marginalise or manipulate their role, even inadvertently, this can create conflict. Keeping channels of communication open and showing a willingness to cooperate on the broader parenting arrangement is key.
In high-conflict situations or where trust is low, the use of solicitor-led correspondence can help formalise discussions, avoid misinterpretations, and potentially achieve consensus without a contested hearing.
Ensuring Children’s Best Interests Remain Central
Ultimately, all legal decisions concerning a child’s upbringing – including foreign holidays – are judged by the standard of the child’s best interests. The presumption is that a child benefits from spending time with both parents, and neither parent should act in a way that deliberately undermines that relationship without extremely compelling reasons.
Therefore, international holidays should be framed not as points of power or unilateral decision-making, but as opportunities for parenting fulfilment, memory-making, and bonding. When approached considerately and legally, they are absolutely achievable – even in the complex terrain of post-divorce co-parenting.
Children pick up on parental stress and anxiety around transitions and disputes. When both parents can present a calm, united and reasonable front concerning travel arrangements – even if there was a history of disagreement – it teaches children security, cooperation, and mutual respect.
Final Thoughts
Seeking permission to travel abroad with a child can seem daunting in the wake of a divorce, particularly when communication with the former partner is tense or limited. However, there is both a legal structure and practical strategies available to help navigate these situations effectively.
By understanding your legal status as a holder of parental responsibility, planning the holiday with attention to the child’s wellbeing and logistical details, seeking open communication with the other parent, and preparing to use legal remedies such as Specific Issue Orders where necessary, you can provide your child with enriching experiences abroad – while keeping their stability and long-term welfare central.
It’s essential to remember that while the law provides the framework, it is the behaviour and attitudes of the parents that often make the biggest difference. A collaborative spirit, legal understanding, and child-focused approach will not only make travel possible but will also foster a healthier co-parenting relationship in the long run.