Posted: 25/03/2021
Although the UK government’s roadmap out of lockdown originally included the possibility of international travel from 17 May 2021, Defence Secretary Ben Wallace admitted recently that booking a trip abroad now would be "premature". The widespread media coverage this week of the Government’s legislative change to make travel abroad illegal (and punishable by a fine of £5,000) until the end of June, has left many people feeling confused. However, the official line still remains that permission to travel abroad after 17 May will be reviewed in mid-April.
For many families, the re-opening of borders to allow international travel is a much wider and more complex issue than simply a blow to potential summer holiday plans: many will have family members scattered across the globe whom they have been unable to see for an unprecedented length of time and are facing another summer of uncertainty.
For all parents and carers of children, there are uncertainties to consider: When will we be allowed to travel? Will it be safe there, and by when? When will we feel happy to travel given vaccine roll-out? Will we need vaccine passports? Will it feel like a ‘normal’ visit if social restrictions remain in place?
For those parents going through relationship breakdown, international travel may also be about facilitating arrangements to spend time with the other parent who lives abroad, visiting grandparents or wider family members in that parent’s home country: there are several additional factors to think about before booking a trip overseas.
The Children Act 1989, states that a parent wishing to take a child abroad must obtain the consent of anyone who has parental responsibility for a child before a child is removed from this jurisdiction, unless there is a court order specifically permitting them to do so[1]. Parents should note that ‘this jurisdiction’ means Great Britain: a trip to the Channel Islands, for example, is classed as abroad for these purposes.
If there is no consent forthcoming from the other parent (and no court order giving permission for the trip to take place) taking a child abroad, even temporarily, will constitute abduction and be a criminal offence. For recently separated parents, this is often surprising and can lead to stress in the lead up to a longed-for trip.
Practical steps for separated parents to take are to ensure that agreement, in writing, is sought well in advance of the international travel taking place. It is important to allow enough time for agreement to be reached and for a court application to be made if consent is not provided by the other parent.
If consent is not given, then it will be necessary to apply for an order whereby the court decides whether to allow the child(ren) to be taken abroad. Generally speaking, so long as return flights can be evidenced, along with the details of where the child will be staying, and arrangements are made for indirect contact with the other parent during the trip (if appropriate), a court is usually willing to agree. Exceptions to this general position will be where safeguarding risks are raised; for example, where the other parent has concerns that the child will not be returned at the end of the visit. This is a particular risk where the destination country does not participate in, or strictly adhere to, international laws to resolve and return children following abduction.
A parent who anticipates regular travel with their child(ren) between countries may wish to consider drawing up a parenting agreement with their other parent. This could include written agreement by both parties to permit certain travel abroad (including frequency, destinations/purpose) in advance so as to avoid having to agree each trip separately or to provide parameters and a framework for agreement to be reached. A dispute resolution mechanism could also be agreed in the event of any later disagreement, such as arbitration.
Alternatively, one or both parents could consider asking the court to make a lives with order. The court does not generally get involved in arrangements for children. Instead it starts from the ‘no order principle’ which has at its foundation the idea that parents can agree where and with whom their child(ren) lives and spends time.
However, where international families anticipate frequent cross-border travel, it could be beneficial to have a joint lives with order in place. A joint lives with order would enable both parents to take their child(ren) abroad for a period of up to 28 days. It can, therefore, be a very practical solution to families moving across the globe to visit family or spend time in other properties.
But joint lives with orders are not always appropriate and will not be made if the court does not consider it in the best interests of the child(ren). Parents who do not have the benefit of a lives with order, who are seeking a child arrangements decision through the courts, may wish to ensure that provision is made in the child arrangements order:
It can be necessary to obtain comprehensive orders from the court covering travel abroad where parental relationships are highly charged.[2] Advice should be sought when considering obtaining such an order, as well as in respect of an application to enforce or vary an existing order if that becomes necessary.
In the majority of cases, it is not necessary to have a very comprehensive order setting out the exact dates and duration of travel, as most parents are able to reach some agreement on the detail between themselves. In those cases, merely setting out a framework for the division of time would be appropriate, perhaps just dealing with the detail of the arrangements during school time and simply stating how the school holidays will be shared, leaving the parents the flexibility to agree the holiday periods between themselves.
For international separating parents, there is often an added dimension to a trip abroad: the risk foreseen by one parent that the travelling parent will not return the child(ren) at the end of the trip, but instead retain them overseas. This can be a particular concern when the destination country is the home of the parent travelling with the child(ren). It can be difficult for the parents to agree that the trip can go ahead, and they will have to turn to the court to make that decision.
In those circumstances, the court will consider if certain safeguards can be put in place to accommodate the trip while assuring the child(ren)’s return. Safeguards can include; undertakings to the court by the travelling parent, mirror orders in the destination country (where necessary), taking steps to ensure that the courts in England and Wales retain the power to enforce the return of the child(ren) if retained abroad, and possible directions to the relevant authorities in the destination country in the event of a failure to return.
Unfortunately, situations do arise where one parent abducts a child. If a child is retained abroad contrary to an agreement, court order or beyond the permitted timescale, urgent expert legal advice should be sought as child abduction law is highly specialised and complex.
In the vast majority of separated families, despite the immediate upset and upheaval involved for everyone, the majority of parents tend to be able to work together in their child's best interest once the dust has settled. However, for those experiencing initial problems in trying to agree what is best for your child, those in an intractable dispute, our those simply wishing to make plans for international travel as soon as possible, a Resolution accredited specialist children lawyer will be able to advise in the most appropriate way to address the specific facts of your case, with the best interests of the child at heart.
[1] Where there is a child arrangements order (CAO) in force determining with whom a child lives, the parent with whom the child lives can take the child abroad for a period of less than one month.
[2] The specific details of the method of travel, destination, duration, those travelling with the child(ren), indirect contact during the trip with the other parent by phone/video call, and the details for handover upon return etc can be put in place to prevent arrangements unravelling and temperatures rising.
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