With the school summer holidays fast approaching, this is the time of year when Kent Law Clinic is routinely called upon to give family law advice to a parent looking to take their child abroad for a holiday. Many readers will have fond childhood memories of family holidays abroad and probably never had to consider whether anyone gave permission for them to go on that holiday.
However, for some parents the prospect of arranging a summer holiday can be fraught with stress and anxiety. In England and Wales, separated parents need to obtain the other parent’s agreement to the child being taken out of the country for a holiday. This is because in this country there is a legal presumption that parents will continue to share responsibility for making decisions about a child even if they separate. This occurs if both parents have parental responsibility for a child. [1]
It may come as a surprise to some to hear that a parent can be guilty of child abduction, an offence punishable by up to seven years in prison, if they do not seek the permission of the other parent before taking a child on holiday. S1(1) Child Abduction Act 1984 states that “a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent”.
Families can be stopped at passport control and if it is evident that a child is travelling without both parents, questions may be asked as to whether consent was obtained from the absent parent. It is often sensible therefore to obtain a short letter of consent and take that on holiday along with the child’s birth certificate.
Sometimes, when two parents separate, intense disagreements arise over where a child should live and with whom they should spend their time. Holidays can often be brought in to that argument and it is not uncommon for consent to a holiday to be refused. Thankfully s1(5) Child Abduction Act 1984 states that a person does not commit an offence of child abduction if:
- they believe the other person consented/would have consented if aware of all the circumstances;
- they have taken all reasonable steps to communicate with the other person but have been unable to communicate with them
- the other person has unreasonably refused to consent
Usually, it is possible to consider s1(5)(c) Child Abduction Act 1984 and advise a client that so long as they have evidence that they have sought the consent of the other party and that the consent is being unreasonable refused, they are unlikely to be committing a child abduction offence if they go on holiday with the child.
Alternatively, if the facts support it, one may advise a client to make an application to the Family Court to obtain the court’s permission to remove the child from the jurisdiction for that specific holiday, or to go one stage further and apply for an order that allows them to take a child abroad for up to one month without the need to obtain the permission of the other party.[2] Such applications are legally relatively straightforward. The court would consider the arguments put forwards by both parents and decide what was in the best interests of the child.[3]
However, two cases have come in to the Clinic this year that have raised a more complicated issue. What should you do if you do not want to contact the other parent?
As noted above, S1 Child Abduction Act 1984 requires the party wishing to remove the child to seek the permission of the other parent. The statute is therefore drafted in such a way as to require the party wishing to go abroad with the child to notify the other parent of their intentions. But what if the party wishing to go on holiday with the child fled domestic violence and for several years has managed to live without the other parent knowing anything about their life? What if a parent has genuine reasons to believe the other party would use the request as an opportunity to exert coercive or controlling behaviour over them again causing emotional abuse?
The facts of the two recent Clinic cases referred to above were very different, but the common theme between them was that both individuals had very good reasons for not wanting to contact their ex-partners and ask permission for a holiday. Both, in different ways, had suffered domestic abuse and the last thing they were prepared to do was to tell their ex-partner of their plans. In a strict legal sense, both clients were in a position where they would be committing an offence of child abduction if they took their child abroad on holiday without asking for the other parent’s consent.
The reality, of course, is that they would have a very good defence for committing any such offence. However, this may be of little comfort to a client who has to make a decision as whether to ‘risk’ the holiday in the first place. Travelling with children knowing that you could be committing an offence does not make for a relaxing summer holiday. More seriously, for a victim of domestic abuse it can be very upsetting to find that having escaped domestic violence you are not entirely free as the law concerning children in England and Wales often require parents to share information about the child if they both hold parental responsibility.
A keen law student may see here an opportunity for law reform. Why not introduce an amendment in to s1(5) Child Abduction Act 1984 that exempts victims of domestic abuse from having to seek permission from the other parent? Would this be a proportionate solution to the problem?
It could be argue that such an exemption would be open to misuse by individuals claiming they had been a victim of domestic violence to avoid having to seek consent from their ex-partner. But, would that a good enough argument against reform? Would that be unfair to genuine victims? Moreover, should someone who has perpetrated violence no longer be allowed to have a say in their child’s life? Is it that simple?
Family Law raises lots of questions about what is best for a child and when and how a parent’s rights should be taken in to account. Issues like domestic violence add layers of complexity to that debate. Currently, there is a discussion before Parliament about a new Domestic Abuse Bill. This legislation aims to better protect victims of domestic abuse who are involved in Family Law proceedings. For example, by preventing their perpetrator from being able to cross-examine them as a witness.
However, the issue of holidays demonstrates that the problem for victims of abuse having to negotiate with their perpetrator over issues concerning children is much wider than just what happens in Court. The last thing a victim of abuse wishes to do after escaping domestic violence is to then have to seek orders from the Family Court. The pending Domestic Abuse Bill is therefore an opportunity for us to look more widely at why our legal system requires victims of abuse to communicate with their perpetrators and whether it is appropriate to continue this practice or whether larger scale legal reform is needed.
Philippa Bruce
Solicitor, Kent Law Clinic
July 2017
[1] Parental Responsibility is a legal concept that entitles the holder to have a say in important decisions concerning a child’s upbringing. It is defined in s3(1) Children Act 1989 as “the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property”. Most parents will have parental responsibility for a child as mothers acquire it at birth and fathers acquire it if they are married to the mother at the time of birth and/or are named on the birth certificate. The position for second female parents can be more complicated – see s1(3) Family Law Reform Act 1987 and s4ZA Children Act 1989.
[2] A person named in a Child Arrangement Order as a person with whom the child is to live is permitted to take the child abroad for a period up to one month without the permission of every person who has parental responsibility – s13(2) Children Act 1989
[3] The Court would have regard to s1(3) Children Act 1989 to determine what is in the child’s welfare