Most of us are eagerly scrutinising the Government’s traffic light categorisation of countries for safe travel abroad. But parents who are separated have extra obligations to meet before they have the green light to travel. Here is our own red, amber and green guide to travelling abroad this summer.
Lockdown has led to many of us being separated from our extended families for long periods. As a result, travelling abroad this year may feel more like a necessity than a holiday. Nevertheless, you cannot take your child abroad without the consent of the other parent, or a court order.
In Scotland, you cannot take your child abroad without the consent of a parent who has parental rights and responsibilities in respect of that child. Keep in mind that not all parents have parental rights. Mothers obtain parental rights automatically. On the other hand, a natural father only acquires parental rights if:
- he is or was married to the mother,
- is named on the birth certificate, or
- there is an agreement or court order in place to that effect.
If you find yourself in the position where consent is being withheld and there is no previous written agreement, the only recourse is to raise an action for a specific issue order and ask the court to decide. As with any action involving children, the court will determine the matter based on three core principles:
- the welfare of the child as the paramount consideration,
- whether it is better to make an order than not make an order, and
- after consideration of the views of the child.
Arguably in the current climate, the courts will be more cautious than usual in granting specific issue orders to allow travel abroad. If a specific issue order is required, parents will need cogent arguments for why the benefit of travel is greater than the risk in these unusual times.
It pays to be prepared. If you are separating from your partner and you have children together, you should consider entering into a minute of agreement. This will regulate in advance whether the child can travel abroad without the need to obtain consent at the last minute.
Being prepared allows separated parents to avoid going through a last minute crisis because they don’t have the necessary consent to travel or even their child’s passport to hand. However, this is often an overlooked area. The implications of failing to come to an agreement in advance about travelling abroad can cause a lot of unnecessary stress. Not to mention the expense in having to cancel flights, accommodation, and the inevitable disappointment that comes with this.
Of course, if you already have an agreement, you are fully prepared. With a registered minute of agreement in place, you have the green light to travel. It is up to the other parent to raise a court action to prevent you from acting on the agreement.
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.