Whether you can take your child abroad on holiday is one of the most common questions separated parents ask.
Anyone with Parental Responsibility for a child can apply for a passport for him. It is not necessary to have the consent of the other parent. If you are a father applying for a passport for your child, however, you are likely to be challenged.
Ownership of the passport belongs to the Home Office, not with the custodial parent or the one who paid for it. If there is likely to be a dispute over the passport you can lodge it with a solicitor for safe keeping, though a duplicate can be issued without your knowledge or consent.
Section 13 of the Children Act provides that if there is a Residence Order in force the resident parent (which means either parent if the order was for shared residence) may take the child out of the country for up to one month (28 days) without the consent of the other parent or persons with PR. For longer periods, or if the period coincides with a time when the child is meant to be with the other parent, they must have either the written consent of all those with PR or the leave of the court. In the case of a Special Guardianship Order the period is three months.
If there is no Residence Order in force, neither parent may take a child outside of the United Kingdom without the written consent of the other parent or any others with parental responsibility.
If the father does not have PR, the mother is still advised to seek his consent or that of the court, and he can apply both for PR and for a Prohibited Steps Order to prevent travel. Removal out of the country can still constitute ‘wrongful removal’ and he can start child abduction proceedings under the Hague Convention on International Child Abduction. Removal is likely to be wrongful if there is a Prohibited Steps Order in force, or if there is a Contact Order in force and removal breaches its terms.
If the other parent unreasonably withholds consent, or will not discuss the matter, no offence is committed.
Note: that some countries now will not allow a lone parent with a child to enter the country unless there is written authorisation from the other parent.
If you want to take your child abroad and the other parent won’t agree you need to plan far ahead and make a Specific Issues application to the court giving the reason for the trip, date and method of travel and return, where the child will be staying and with whom and providing contact landline telephone numbers and other provisions for continuing contact. This should be recorded in the order, together with declaration that the child’s habitual residence is in England/Wales.
It may be appropriate to make the court an Undertaking to return the child on a specific date. If you breach the Undertaking it is a criminal offence, which may give the other parent some assurance that you really will return the child.
Be wary of taking your child abroad even if the trip has been agreed with the other parent – it’s not unknown for custodial parents to agree to such trips and then promptly get a Prohibited Steps Order or contact the police and allege abduction. If in any doubt about what is legal or reasonable, apply to the court for leave. If you don’t take these precautions you may find yourself unable to go on the planned trip and you will have wasted a lot of money.
Either parent can make an application ‘without notice’ if the matter is urgent.
A contact parent may not take a child out of the country without the resident parent’s consent, but it is possible to have a direction added to the order to allow you to take the child abroad for contact purposes (if you live abroad, for example), so that you don’t need to get the resident parent’s permission each time. If you don’t have such a direction and the other parent objects, you’ll have to apply to the court and show that it is in the child’s best interests, and your ex will have to show that it is not (they’ll probably claim you intend to abduct the child).