With the October school holiday fast approaching many people are starting to turn their thoughts to preparing for the big week off.
Where parents are divorced or living separately, making arrangements for a holiday abroad with their children can be a difficult and often contentious endeavour. One of the main issues that we come across when discussing holiday travel with clients is the question of consent and issues that surround taking a child abroad, particularly when one parent has a different surname to their child.
Understanding Parental Responsibility and consent
In Scotland, parental rights and responsibilities (PRRs) are covered by Part 1 of the Children (Scotland) Act 1995. Scottish Law also dictates when a parent will have PRRs and who else, other than a parent, can obtain them. Section 2 of the 1995 Act deals with the need for consent.
The legal position is that no person can take a child who lives in Scotland out of the United Kingdom without the consent of both parents and any other party who has parental rights and responsibilities in respect of the child.
If you have concerns about your child travelling abroad with your ex-partner or a third party, you have the authority to withhold or withdraw consent if you consider this to be in your child’s best interests.
If you are concerned that the other parent may take your child abroad without your consent, you can apply to the Court seeking an order to prevent the child from being removed from your care, or out with the United Kingdom. This is called an order for interdict and can be granted on a temporary and on an emergency basis. The interdict, or interim interdict, may only apply for a specific period or will otherwise remain in force until further order of Court.
On the other hand, if you are wanting to take your child on holiday and the other parent has refused to provide their consent, the Court can be asked to grant orders known as ‘Specific Issue Orders’. You can seek for the child’s passport to be released to you and for the Court’s authority to travel abroad with your child during a specified period. In this case, it is left to the Court to decide whether the child can travel. It is generally accepted that the Court will be reluctant to prevent a child from holidaying abroad with one of their parents, but the other parent may well have reasonable concerns and grounds to oppose this which is why in some cases matters of this nature require to be considered by a Court.
Consequences of Traveling without Permission
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.
Handling Different Surnames
There can be situations where a child has a different surname from the travelling parent. For example, the child’s parents may have never married and the child has only taken one parent’s surname or one of the parents may have remarried. Where this is the case, it is advisable to carry evidence of the parent-child relationship and provide clarification for 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.
What to Remember When Travelling with a Different Surname
When planning to travel abroad with a child who has a different surname, it is essential to understand and comply with the legal requirements surrounding parental responsibilities. These include:
- Seeking permission from all individuals with parental responsibilities in respect of the child;
- Adhering to the terms of any Court orders in place in relation to the child;
- Carrying relevant supporting documents to help facilitate smooth travel experiences, including a notarised letter of consent from the other parent.
By following the legal guidelines parents can ensure that the best interests of their children are maintained while allowing them to enjoy their travels abroad.
