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Can my ex take the children out of the country?

Whether you can take your child abroad on holiday is one of the most common questions separated parents ask.

Section 13 of the Children Act provides that if there is a Residence Order in force, or a new Child Arrangements Order, the resident parent (which means either parent if the order is 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, even if the father doesn’t have PR, 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 or Child Arrangements 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.

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, where you will be staying, who will be going, and what provisions you will make for contact. 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 resident 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.

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.

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