With summer fast approaching and the recent pleasant weather in Glasgow, many families are starting to consider jetting off to that place in the sun. For separated parents, planning to travel abroad with children can be a challenge. We often see clients who are concerned about consent issues related to their children travelling abroad, whether it's fearing that an ex-partner will refuse consent or hesitating to grant permission themselves. We encourage clients to discuss any potential holiday travel plans with their ex-partner at an early stage to avoid disruptions.  

Understanding the Law and Consent for Child Travel

The relevant piece of legislation in these circumstances is the Children (Scotland) Act 1995 ('The Act'). Sections 1 and 2 of the Act set out the Parental Rights and Responsibilities that parents have in relation to their child.

The Act, under Section 2(3), bestows a right on a parent that 'no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child out with, the United Kingdom' without their consent. Section 2(6) of the Act clarifies that consent of both parents and any other party who may have parental rights and responsibilities in respect of the child is required before removing the child from the United Kingdom. 

Can a Child Be Prevented from Travelling Abroad? 

If a parent has concerns about their child travelling abroad with the other parent, then they have the authority to withhold or withdraw consent. If a parent refuses consent and is worried that their child may be taken abroad regardless, then that person is entitled to apply to the Court seeking an order to prevent the child from being removed from their care. This is called an order for interdict, and it can be granted on a temporary or interim basis. The interdict, or interim interdict, may only apply for a specific period or otherwise remain in force until further order of the Court.

Process When Consent Is Withheld or Withdrawn

If a parent wishes to take their child on holiday but the other parent has refused consent, then the Act makes provision under section 2(3) for that parent to apply to the Court for a 'Specific Issue Order.' They can seek the child's passport to be released and for the Court's authority to travel abroad with their child. Essentially, it is up to the Court to decide whether the child should travel.

It is generally accepted that the Court is reluctant to prevent a child from travelling abroad with one of their parents. The other parent may well have reasonable concerns and grounds to oppose this, which is why some cases require consideration by the Court. Before making any orders, however, the Court needs to have regard to the following overarching principles:

  • The court must regard the welfare of the child as its paramount consideration.
  • The court is prevented from making an order unless it would be better for the child that the order be made, that none should be made at all
  • The court must, so far as is practicable, give the child an opportunity to indicate whether he or she wishes to express views and, if so, to give an opportunity to express them

When the Court assesses welfare, it will consider several factors. Common considerations when deciding to grant authority for a child to travel are: the duration of the holiday, the holiday destination, any specific health needs of the child and whether they can be met away from home, and provision for contact with the parent who remains at home.

If both parents agree that their children should travel with either parent, then this can be set out in a Minute of Agreement. This would take away the need to consent to travel every time a holiday is proposed. The extract agreement can be produced electronically or in paper form as evidence of the other parent's consent. 

Consequences of Travelling Without Consent 

Taking a child abroad without the necessary permission can be considered child abduction, which is a criminal offence. To avoid legal complications and to ensure the child's best interests are protected, it is crucial for parents to adhere to legal requirements when planning international travel with their child. 

How Is Consent Given?

The Act does not expressly state that written consent is required, so verbal consent is as legally binding as written consent in these circumstances. We have seen in practice that it is helpful for the travelling party to show there has been some form of written consent, even if it is informal, such as in an email or text message.  

Travelling as a Solo Parent

When travelling as a solo parent, there is a possibility that passport control will ask if the other parent consents to the trip. This can happen in any event, but more often when the child has a different surname from the travelling parent. Where this is the case, it is advisable to carry evidence of the parent-child relationship and provide clarification for travelling without the other parent or the difference in surnames in order to be prepared for the checks that are in place at ports, airports, and international railway stations.

Supporting documentation may include the child's birth certificate, your decree of divorce and/or marriage certificate. We would also advise anyone in this situation to obtain a notarised letter of consent from the other parent, clearly stating their agreement to the child's travel abroad with the other parent. 

Conclusion

As parents, we all want the best for our children, especially when it comes to exciting travels abroad. By taking the time to understand and follow the guidelines outlined in the law, you can ensure that your child's best interests are always prioritised. Open communication and a clear understanding of the legal requirements can make planning your family trips much smoother and more enjoyable. If you need guidance or legal advice, contact our family law experts at {{CONTACT_NUMBER}}. We are here to help. Safe travels!