The Children Act 1989 and Child Arrangements Orders

If there is a Child Arrangements Order in place then neither parent can remove the child from the jurisdiction of the United Kingdom without the others consent; s 13 of The Children Act 1989 states:

13) 1) Where a child arrangement order to which subsection (4) applies is in force with respect to a child, no person may –

(a) Cause the child to be known by a new surname or;
(b) Remove him from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the court.

2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month by a person named in the child arrangements order as person with whom the child is to live.

3) In making a child arrangements order to which subsection (4) applies, the court may grant the leave required by subsection (1)(b), either generally or for specific purposes.

4) This subsection applies to a child arrangements order if the arrangements regulated by the order consists of, or include, arrangements which relate to either or both of the following-
(a) with whom the child concerned is to live; and
(b) when the child is to live with any person.

So in cases where a parent has a Lives with Order (previously known as a Residence Order), they may remove a child from the jurisdiction for a period of up to one month. If the period of removal is more than one month then the obligation is on the primary carer who has the Lives with Order to either obtain the consent of every person who has parental responsibility, or in the alternative to apply to the court for permission in relation to any planned removal of more than one month.

If there is a Shared Lives with Order (sometimes called a shared care order) then either parent may remove the child from the jurisdiction for up to a month.

But what about those cases where there is no Child Arrangements Order?

There is no case law which allows a foreign holiday for a child if the primary carer simply arranges all the travel and relies on others to care for the child throughout the journey and the resultant holiday.

Child Abduction

Alongside the Children Act, is the Child Abduction Act 1984. Under the Child Abduction Act it is a criminal offence to remove a child from the jurisdiction. A parent commits an offence of child abduction if s/he takes a child out of the UK without the consent of the other parent or the permission of the Court. This applies whether or not a Lives with Order is in force.

It is however a defence to the offence of child abduction if the parent can show that they took the child out of the UK jurisdiction where:

• The other parent with parental responsibility consented or would have consented if they were aware of all the relevant circumstances.
• The parent had taken all reasonable steps to communicate to the other parent with parental responsibility the intention to remove the child even if they had been able to actually communicate with them
• The other parent with parental responsibility has unreasonably refused to consent.

Providing Information

Therefore whether or not you have a “Lives with Order”, it is important to try to obtain the consent of the other parent to a holiday outside the jurisdiction. Having an email exchange recording the agreement is good evidence that the consent was given. It is good practice to provide the other parent with as much information about the trip as possible – flight details, where the parent will be staying with the child/children and contact details whilst they are there, who else will be on the trip, and what arrangements for Skype or telephone calls can be made whilst they are away. Should the case end up in Court, the Court is likely to be more favourable where the client can show that s/he provided this information because it adds weight to an argument that consent by the other person was unreasonably withheld.

Court Application

If there is no agreement from the other parent regarding the trip, then the parent wanting to travel could make an Application to Court for a Specific Issue Order. Or, the parent opposing the trip may make an Application to the Court for a Prohibited Steps Order to prevent the travel if there is no Child Arrangements Order in place.

Arguably, rather than making an Application for a Specific Issue Order for permission to travel, the parent wishing to travel could put the onus on the other parent to apply for a Prohibited Steps Order to prevent the travel. This is a riskier strategy but if all of the information above is provided there is a defence to an allegation of child abduction, if that were made.