Avoiding legal turbulence: travelling with your child

When travelling with your child, you need to obtain the consent of all individuals with parental responsibility (although there is an exception to this if you have a Child Arrangements Order in place, as set out below). Usually, the country you are travelling to will likely want to see evidence of this consent, especially if your child has a different surname to you. If you’re planning to take your child on an overseas trip without the other parent, planning is key, and speaking with your co-parent about your plans in advance should help things to run smoothly and ensure there are no last-minute issues with arrangements. Agreeing the plans between you will be the least stressful option, if at all possible.   

If your co-parent refuses to provide their consent to your travel plans, there are two orders which can enable you to travel with your child:

• A Child Arrangements Order: if you have an order which states that the child lives with you (as opposed to a shared care arrangement with the other parent), this means that you can take your child outside of the country for a maximum of 28 days without the other parent’s permission. 
• A Specific Issue Order: enables you in the specific circumstances to travel outside of England and Wales. 

When a trip abroad becomes international child abduction

Where you do not have the necessary consent or Court order, removing a child from their country of habitual residence will amount to child abduction which is a criminal offence. 

Habitual residence is fundamentally a factual test and involves looking at where a child is integrated into a social and family environment. Habitual residence is not necessarily tied to a child’s passport, and parents with international connections should be mindful that habitual residence can change even in the short space of one day. 

The Court must review several factors to establish where a child should be considered habitually resident, including their:

• Nationality and legal rights to reside in a country
• Family connections and social relationships 
• Education and access to healthcare services 
• Physical location, both current and previous
• Time spent in different countries
• Age and primary carer.

The Court may also consider the parent’s:

• Reasons for travel 
• Future intentions for the child’s residence
• Language spoken to/by the child
• Employment
• Items brought across, including the child’s belongings.

The risks of extended trips abroad

Parents with international connections may wish to carefully consider plans to work or visit relatives abroad. Miscommunication and misconceptions about whether an extended trip is a holiday or permanent move abroad can cause legal difficulties down the line. 

In AB and CD [2019] EWHC 3381, the court was required to determine the habitual residence of 12-month-old “E”, who was born in England and had spent nearly half of his life in Brazil with relatives. When E’s mother returned to England with E for a job opportunity, she was accused of child abduction by E’s father, who sought to establish that E was habitually resident in Brazil immediately before his removal. In return, E’s mother argued that E had never been habitually resident in Brazil and that their time in Brazil was only a holiday. Ultimately, the Court determined that E was habitually resident in England, reflecting that at such a young age, E’s ‘world and his security is very much tied up with those who care for him”. This case shows how important it is to clearly outline your intentions for the trip with your co-parent, and how quickly plans can unravel without proper communication.  

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For families travelling internationally with children, it’s crucial to appreciate that what may appear to be a harmless trip can be a criminal offence in certain circumstances. If you are planning to travel with your child, you should plan in advance and leave plenty before your trip to obtain the necessary permissions. If a dispute arises in relation to your trip, our Family team has extensive experience in relation to international family matters and can provide you with specialist legal support.