The question of taking a child abroad can often be a thorny subject, especially in cases where there is an acrimonious relationship between the parents. Whether one parent wants to relocate with your child permanently, or they just want to take them on a family holiday, it is important that you understand your rights and whether your ex can take your child abroad without your permission.
While it is always important to cooperate and do what is in the best interests of the child, there may be some occasions where you will object to your ex taking your child out of the country. With this in mind, here is our guide on whether your ex needs your consent and what you should do.
Whether or not consent is needed in the first place is down to Parental Responsibility. This is a legal concept that covers the obligations, rights and duties of a parent.
If you’re the child’s mother, then you are granted parental responsibility automatically. However, you’ll only be given parental responsibility as a father in the following circumstances:
- You were married to the mother at birth or afterwards
- Your name is on the birth certificate (if the child was born after 1st December 2013)
- You have been granted parental responsibility by a Court
- You have entered into a parental responsibility agreement with the mother
If there is a Court Order in place, then this also needs to be factored into the question of parental responsibility.
Same Sex Parentage
If both parents are of the same sex, then the rules are slightly different. Here is how they work:
Two Female Parents
In cases where the child has two mothers, if one of them actually carried the child, they are automatically granted parental responsibility. If that person is married or has been in a civil partnership at the time of the fertility treatment/insemination, the partner will also be treated as a parent.
Should the parents not be married or in a civil partnership, the partner can still obtain parental responsibility if both parties sign specific forms known as Form WP and Form PP, and give consent that the partner should be treated as a parent. Once this has been done, the partner can apply for parental responsibility to be granted in the same ways as an unmarried father.
Two Male Parents
When two males have a child born through the act of surrogacy, parental responsibility can be acquired in a few ways. If one of the men is the biological father and named on the birth certificate (if the child was born after 1st December 2013), they will automatically be given parental responsibility
Both male parents can also apply to a Court for a Parental Order, which is designed to reassign parentage to the desired parents after the child’s birth. To be successful, they must both satisfy the criteria laid out in Section 54 of the Human Fertilisation and Embryology Act 1990/2008, which include:
- The gametes of at least one of the applicants were used to create the embryo
- The applicants must be married/civil partners or in what a Court considers to be an “enduring family relationship”
- The application must be made within six months of the child’s birth
- At the time of the application, the child was living with the applicants
- The woman (surrogate) who carried the child has freely and with good understanding of the circumstances, has agreed to a parental order being granted
Is Permission Needed in General?
Now we’ve established who has parental responsibility for the child, the next question is who needs permission and who doesn’t. If your ex is the only person with parental responsibility then consent is not required – although it is still recommended that they check with you to avoid potential conflict or stress.
If you both have parental responsibility, they will need to get permission from you, unless:
- There is a Child Arrangement Order (CAO) in place that specifies the child should live with your ex
- Your ex has obtained an order from a Court that grants permission for the child to be taken abroad
Should your ex have a CAO in place, they are entitled to take the child abroad for up to 28 days without needing consent. If you’re a father who doesn’t already have parental responsibility and there’s no CAO in place, you can apply to a Court to grant you the responsibility – meaning you will then be able to raise objections.
Should your permission be required for your ex to take your child out of the country, and you are unwilling to grant it, the other parent will need to apply for a Specific Issue Order. This asks a Court to determine whether it’s in the child’s best interests to go on the holiday. If the Court upholds the request, your ex will be able to take your child with them. If not, the child must stay in the country.
If you believe that your ex will attempt to take the child abroad without your permission, the next step is to apply for a Prohibited Steps Order from the Court. This will either prevent your ex from removing the child from the country, or make them guilty of abduction if they carry on with their plans.
Increased globalisation has meant that many more job opportunities are opening up abroad. Alongside this, there has been an increase in the number of parents wanting to relocate to another country for work purposes and take their child with them.
This will undoubtedly be a contentious subject, as it is natural for both parents to want unrestricted access to their child. If your ex decides they want to permanently relocate, you will undoubtedly have a say in the matter if you have Parental Responsibility.
While this doesn’t automatically mean that you can block the move, it does give you the opportunity to find a solution that is mutually-beneficial. Your first course of action should be to discuss the matter with your ex in a non-confrontational manner to see if a compromise can be found – potentially by seeking help from a mediator.
If you are still unwilling for your ex to relocate with your child, you can then apply for a Court to make the final decision. Your ex will need to seek a relocation application or leave to remove and you will be given the opportunity to put forward your case.
The Court will then consider all of the evidence and decide if it is in the child’s best interests to move abroad. Even if permission is granted, the Court can provide safeguards that ensure you still have a good level of contact with your child – such as extended visitation during school holidays and the use of video calls. You will also be able to apply for mirror orders and other legal mechanisms to bind your ex to the rulings of the Court once they have left the country.
Concerns of Abduction
In families where one or both parents have an international connection, it is common to be anxious that the child will not be returned if they are taken abroad. Should you be concerned that your ex will either fail to bring your child back to the UK, or remove them from the country without your permission, it is essential that you get legal advice and speak to the Courts as soon as possible. A Court can grant an order that prohibits your ex from removing your child from the country without your permission.
Get Expert Support
If there is ever a dispute concerning taking a child abroad, the best thing to do is try and work it out amicably between both parties. Should this not be possible, your next cause of action should be to seek the assistance of a specialist solicitor as soon as possible. This is especially true if your ex wants to permanently relocate to another country and take your child with them, or you are fearful of abduction.
At Shams Williams Solicitors, we have a team of experienced Family Law solicitors who can help you apply for the necessary Court Orders or permissions and we will be with you every step of the way – giving you peace of mind that everything will be taken care of.