In this family law guide we are covering taking a child abroad or “removal from jurisdiction”. The advice covers children living in England or Wales. For these purposes abroad is outside the jurisdiction of the Courts of England and Wales, so it includes Scotland and Ireland. This may be for a holiday or more permanently. A child for these purposes is defined as a minor under the age of 16.
The law is that:
The important thing is that the parties must communicate and any agreement should be made in writing. Logically a person can only take a child abroad if they have the child's passport and whoever holds the passport can exercise some control as a result. However, a passport can be obtained by any person with parental responsibility for a child.
If agreement is required and cannot be reached then a Court Order should be applied for. Obtaining an Order takes time, which is why it is important to give plenty of notice of the intention to take the child on holiday.
Where you discover that the child is to be taken abroad and you do not agree to this then, again, a Court Order can be obtained. It is much more likely that an Order will be made on short notice where the person taking the child abroad has failed to notify the other person or given very short notice. This can have the effect of preventing the holiday, which is why plenty of notice is advisable.
Should your child have been removed from your care and you believe there is a real risk that the other person will take the child abroad without authority, then you should contact the police immediately and then contact a lawyer. However fast the Courts can act, it is rarely as fast as the police can.
If you are planning on emigrating or removing a child for an extended period then, unless it is agreed with all other persons with parental responsibility, you will need a Court Order. Even if there is agreement, an Order will be needed if there is a Residence Order in place. If there is agreement, our advice is that it be obtained in writing, to prevent the other parties denying any agreement if they later change their mind.
Where Court approval is required the Court will want to consider the motives for the move and whether the issue has been fully thought through. The Court will look at the likely effect on the child, applying the Welfare Checklist. As part of this, the Court will consider the impact on the resident parent of any refusal, on the basis that this is also likely to have an impact on any child. Often the potential impact of any refusal, as long as all of the other issues were considered when making the decision to want to move, will be decisive.