Can I take my child on holiday without asking the other parent?

Content List:

1. Parental Responsibility

How can Unmarried Fathers get Parental Responsibility?

How can Non-Parents get ‘Parental Responsibility?

2. Child Arrangement Orders

What is a Child Arrangements Order? '

3. Contact Orders

What are ‘Contact Orders’?

Can someone with a Contact Order in their favour take the child abroad for holidays?

4. No Court Orders

5. Prohibited Steps Order

6. Specific Issue Order

7. Holidays outside the jurisdiction but within England and Wales?

8. Rights of non-parents (eg. grandparents, relatives, friends, extended family members etc) to take the child for holidays abroad?

9. Child Arrangement Orders and Parental Responsibility

10. What conditions are taken into consideration by the court deciding whether a parent can take the child for holidays abroad?

11. Case Study: Real life example

All important decisions, concerning a child, including travel abroad on a vacation, are taken by the person(s) who has the Parental Responsibility (PR) of the child.

There are various ways in which one can acquire Parental Responsibility.

Before we dive deeper into the above question it is important for us to understand all the factors that will lead to the ultimate answer.

As per Section 3 of the Children Act 1989:

Further, any person in whose favour a Child Arrangement Order (CAO) is made by the court will automatically obtain the parental responsibility. The PR will continue to exist for the duration of the Child Arrangement Order and the person will lose it if the order is brought to an end by the court.

By the virtue of parental responsibility, a person with such right can make important decisions in relation to a child. This may include:

The scope of this article is to determine how the rights, duties and responsibilities acquired by Child Arrangement Order and by Parental Responsibility interact with each other while making important decisions for the child in regards to travelling for holidays outside the jurisdiction within England and Wales, and abroad.

A biological mother of the child will automatically have the PR of her child.

In case of a married father if he is married to the biological mother at the time of the birth of the child or marries her after the birth of the child he will automatically have parental responsibility for the child.

However, if the biological mother is not married to the father of the child and the child was born before 1st December 2003, such father will not have the PR automatically. Nonetheless, the father can acquire the PR in the following ways which will be discussed in the second part of this answer.

Another scenario is if the biological mother is not married to the father of the child and the child is born on or after 1st December 2003, such father will automatically have PR for the child provided his name is registered on the birth certificate of the child.

An important thing to note is that the Children Act 1989 has laid down provisions for the civil partners and same-sex spouses to obtain parental responsibility.

Essentially, if a child is conceived through artificial insemination on or after 6th April 2009 and the mother was in a civil partnership, that civil partner will automatically have PR for the child. If the mother was married to her same-sex spouse and the child was conceived through artificial insemination, the spouse will also automatically obtain the PR for the child. Provided both the names should be added on the birth certificate.

There are few ways in which an unmarried biological father can acquire parental responsibility. Having said that, it is also important to understand what rights a father has over his child in order to comprehend the care and duty a father owes to his child. You can refer to this article on the ‘rights of a father to see their child’ for a better understanding.

a) Entering into a PR agreement with the mother of the child.

b) Through a Parental Responsibility Order of the court.

c) Through a Child Arrangement Order

d) By marrying the biological mother

Non-biological parents such as step-parents, grandparents, same-sex partners can acquire parental responsibility for a child in the following ways:

When the parents are separated or divorced and cannot reach an agreement on matters such as whom the child should live with, have contact with, child maintenance, etc; they can apply for a Child Arrangements Order to iron out the finer details taking into consideration the best interests of the child. Here’s a step-by-step guide on how one can file for a Child arrangements order.

Anyone with parental responsibility can apply for a child arrangement order. This can include guardian, special guardians, civil partners, grandparents who have PR.

A child arrangement order is primarily of two types:

a) Live with order - When and who the child will live with

b) Contact order - When and who the child will spend time, or otherwise have contact with

As per the general law, it states that any child or children who reach the age of 16 has the right to decide with whom they want to live with.

However, if there is a child arrangement order then it will stay in place until the child reaches the age of 18 unless such order is ceased by the court.

Further, another important thing to note is that by virtue of a Child Arrangements Order such a person will automatically obtain the parental responsibility if they do not have it already.

Only a person who with parental responsibility can take important decisions such as taking a child for holidays outside the jurisdiction i.e. within England or Abroad.

Any person who has a ‘Live With’ order in their favour can take the child for holidays abroad for up to 28 days without permission of other person(s) with parental responsibility unless there is a court order stating otherwise.

However, such a person must still make the children available for any contact arrangements ordered by the court.

Similarly, a special guardian can take the child abroad for holidays without permission of all those with PR for a period not extending three months.

Contact orders set out the way in which the non-resident parent shall have contact with the child. Such contact can be direct, face-to-face or indirectly such as through emails, telephonic calls, letters, etc. Even non-parent like grandparents, relatives can apply for contact orders before the court.

Can someone with a Contact Order in their favour take the child for holidays abroad without the consent of everyone with parental responsibility? The answer is ‘No’.

Even though by virtue of Contact Orders such a person will have parental responsibility, they cannot take the child abroad without the person of everyone with parental responsibility.

If the consent is denied then such person can apply for a ‘Specific Issue Order’ before the court to take the child abroad for holidays.

First of all, the important thing to understand is that it is not necessary to apply for a Child Arrangement Order. The objective of a child arrangement order is to make the arrangements legally binding by way of a consent order. It implies that such an order is usually applied where arrangements cannot be agreed upon or there are concerns with respect to the compliance of the agreed arrangements.

Having said that, when there are no court orders in place then the consent of everyone who has parental responsibility is necessary to take the child abroad for holidays. Failing to do so will result in a criminal offence of child abduction.

Furthermore, if the mother alone has parental responsibility and there are no court orders then she can take the child abroad for holidays without anyone else’s permission.

However, if the other parent is not willing to let the child go abroad for concerns of not returning the child then they can apply for Parental Responsibility and ask the court to make a ‘Prohibited Steps Order’ to deny the travel.

A ‘Prohibited Steps Order’ (PSO) is a type of child arrangement order but different from ‘live-with’ and ‘contact orders’. A PSO is used to prevent a person from exercising parental responsibility to take specific action regarding a child. .

You can learn more about Prohibited Steps Orders and Specific Issue Orders here: Specific Issue Orders or Prohibited Steps Orders

Suppose if one parent wants to take the child abroad for holidays and the other parent is not consenting to such travel for reasonable concerns such as non-returning of the child then that parent can apply to the court for a ‘Prohibited Steps Order’ to forbid the traveling.

A Prohibited Steps Order is not limited only to traveling matters but any such important matter concerning the child such as relocation, changing the name of the child, changing the school of a child, etc.

A Specific Issue Order is a type of child arrangement order made by the court to settle a dispute. A Specific Issue Order is made by the court to allow the person applying for such order to make decisions without the consent of the other parent with Parental Responsibility.

You can learn more about Prohibited Steps Orders and Specific Issue Orders here: Specific Issue Orders or Prohibited Steps Orders

If a parent who wishes to take their child abroad for holidays and is denied the consent of the other parent with Parental Responsibility then that parent can approach the court to make a Specific Issue Order to allow the travel.

The case of EN (Mother) v AH (Father) [2015] EWFC 39 can be taken into consideration to understand how a specific issue order is given by the court related to traveling matters.

Such an order can also be given on matters related to the child's education, medical treatment they shall receive, their religious education, etc.

Is the permission of every person with parental responsibility required if a parent wishes to take the child for holidays outside the jurisdiction but within England and Wales?

The above question can be answered in two parts.

1. Firstly, if the resident parent wishes to take the child on holidays outside the jurisdiction but within England and Wales.

2. Secondly, the non-resident parent wishes to travel with the child for holidays outside the jurisdiction but within England and Wales.

It is to be noted that in most cases by default the court allows travelling up to 28 days if a Child Arrangements Order is in place

If live-with orders and contact orders are in favour of non-parents (eg. grandparents, civil-partners, step-parents) and they wish to travel with the child within England then similar conditions will be applicable to them as well.

For the sake of the above question, let us assume that the above persons do not have parental responsibility and they wish to travel with the child for holidays outside the jurisdiction.

Irrespective of whether they wish to take the child outside the jurisdiction but within England and abroad consent of everyone with PR is necessary for the travel and it is advisable to take such consent in written form.

There is very little difference between the rights obtained by virtue of Child Arrangements Order and parental responsibility. As a result of a live-with order is that such a person gains parental responsibility automatically.

Every person with parental responsibility has equal power and authority to make decisions for the child, bearing the child best interests in mind.

However, the exercise of PR has to be realistic. For example, if a couple is separated then the person who the child lives with can make all the more trivial, day-to-day decisions about the child. It means that the non-resident parent with PR cannot interfere with the day-to-day management of the child, thereby limiting the exercise of PR.

Each person with PR has the right to make or be involved in the important decisions in a child’s life like their schooling, travelling abroad, relocation, changing or registering their names.

However, the decision of a special guardian or a court with parental responsibility can override the decision of all those with parental responsibility.

If a parent wishes to travel with the child outside of the jurisdiction then it is advisable that written evidence of the consent of all the persons with parental responsibility of the child is obtained.

It is essential that all the documentary evidence of permission is in place before travelling. The details of the person with whom the child will be travelling, the destination, the reason for travel, and the specified period of time shall also be provided.

Thus, while issuing a Specific Order for travelling the court takes the facts and circumstances of each case into consideration before permitting or forbidding such travel. It implies that such an order will vary depending on the merits of the case.

In the case of EN (Mother) v AH (Father) [2015] EWFC 39, the mother wanted to take her daughter for holiday in Turkey to see her extended relatives while the father was concerned that she may use this as an opportunity to permanently relocate the child to Iran.

In this case, both the parents had parental responsibility and the mother had applied for a Specific Issue Order before the court to permit the travel. While adjudicating the matter, an important consideration by the court was laid on whether the child can be swiftly returned back to England in case the removal of the child is unlawful.

Any country that is a signatory to the 1980 Convention on Civil Aspects of International Child Abduction ('Hague Convention') makes it easier for the child to return back to England. In the present case, Turkey was a signatory to the Hague Convention.

Secondly, the court assessed the plausibility of the child being taken across the Turkish border to Iran which seemed ‘minimal’ in the present case. Most importantly the court considers the best interest of the child while deciding on the matter and therefore, in the given case it allowed the mother to take her daughter for holidays to Turkey subject to certain conditions.

Please note that this article is NOT legal advise and should NOT be treated as Legal advice.

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