Taking your children on holiday abroad following separation and divorce

Are you separated from your children’s other parent? Find out everything you need to know about taking your children on holiday abroad following separation and divorce.

Most people are eager to get away on a foreign holiday this year, having not had an opportunity to do so for the last couple of years due to travel restrictions imposed as a result of the Covid pandemic.

The average family will spend £5,000 to £10,000 on their summer holiday, making it one of the largest single items of expenditure on the annual budget.

Trethowans
Trethowans

Add to that the stress of flight disruption and airport chaos and it is easy to see why it is important that everything should run smoothly as far as taking children abroad is concerned.

This stress can be magnified if you are separated or divorced and need to navigate a tricky relationship with your ex. Read on for advice on how to plan a stress-free summer holiday with your children.

Taking your children abroad on holiday

If you have a court order which states that your children should “live with” you, even if that is only for part of the time, you may take your children abroad for a period of up to 28 days without having to obtain the consent of the other parent or the court (unless a court order expressly states that you cannot). However, it is always a good idea to inform the other parent of your travel arrangements in advance.

If, like most parents, you do not have a court order and have just reached an informal agreement with your ex about how your children should divide their time between you, whether you will need the consent of the other parent to take the children abroad will depend on whether the other parent has Parental Responsibility for the child. 

Who has Parental Responsibility for your child?

Mothers always have Parental Responsibility for their children. The father will have Parental Responsibility for a child if he was married to the mother at the time of the child’s birth.

If the parents were not married, the father will have Parental Responsibility if he attended with the mother to register the child’s birth and is named on the birth certificate or if he has entered into a Parental Responsibility Agreement with the mother or obtained a Parental Responsibility Order from the court.

Do you need consent to travel to your holiday destination?

Before booking your holiday it is essential to check the government’s foreign travel advice website to find out the requirements of the destination country for entry for children.

Some countries (for example, Canada) require you to produce a letter of consent from the other parent. South Africa has particularly strict rules and requires full birth certificates for the children and letters of consent in a prescribed form from both parents. 

Even if your destination country does not require a letter of consent from the other parent, it is good practice to travel with one. The letter should include the other parent’s contact details and details about the trip.

What if the other parent won’t give you consent to travel?

If the other parent has Parental Responsibility but will not give consent for the trip, you will need to make an application to the court for the court’s permission. You will need to provide the court with full details of your travel plans to include dates and times of travel and flight numbers; the address where you will be staying and contact details whilst you are away.

You should produce copies of return flight tickets, hotel bookings etc. As long as you have a sensible plan and the court is satisfied that you intend to return to the UK, it is likely that the court will grant permission for you to take the children abroad for a holiday.

The Family Court is always extremely busy and it is essential that you should make your application as soon as you are aware that the other parent will not consent, to ensure that your application will be dealt with prior to your intended date of travel.

Travelling with a different surname to your children

It is Increasingly common for children to have a different surname from one of their parents as parents choose not to marry; women choose not to change their name on marriage or following divorce and/or re-marriage.

If your child has a different surname, it is really important that you carry the original or an official certified copy of their full birth certificate with you when travelling abroad so that you are able to prove that you are their parent.

Anecdotal evidence suggests that this is being requested more frequently at EU member border control posts now that the UK is no longer a member of the EU. It is also often requested on return to the UK.

How to prevent your ex taking your children on a foreign holiday

It may be that your ex wishes to take your children on holiday, but you do not consider their travel plans to be in the children’s best interests. 

Maybe you consider the destination country to be dangerous or the travel plans would require the children to be taken out of school for a lengthy period of time or you fear that your ex will not return the children at the end of the holiday, perhaps because  he has family abroad or because he is working in the destination country.

The first step is to make your objections known to the other parent in writing. You should clearly set out the reasons for your objections.

If they ignore your objections, the next step would be to apply to the court for a Prohibited Steps Order to prevent the children being removed from England and Wales. The court will then make a decision based on the best interests of the children.   

Joanna Toloczko is a partner in the family team at RWK Goodman. She has over 30 years of experience in family law practice and is also an accredited family mediator. She can be contacted on 07553 058485 or by email.

Photo by Vidar Nordli-Mathisen