Most of us might take for granted taking our children abroad for holidays, not withstanding pandemics and travel restrictions making it a lot more difficult than normal sometimes.
However, family lawyers are often needed due to a parent being confronted with a scenario that they are being stopped from taking their child or children overseas.
If you need help finding a family lawyer to help you with your legal situation, Lawyers List is the leading directory designed to help you find and contact independent family law specialists.
The legal position for divorced parents with children makes taking them abroad, more than a case of grabbing their passports and flying off to countries around the globe.
It can be a situation which needs to be dealt with correctly, otherwise, not only will those overseas trips with their children not happen, a parent could end up in serious trouble if they attempt them, contrary to any court orders.
In the vast majority of divorces, parents are given joint responsibility for the children, and whilst they may live permanently with one of those parents, the other has as many rights with regards to overseeing their health, education, and well-being.
Under the Family Law Act 1975, there is a legal presumption of “equal shared parental responsibility.” This means that even if your child lives mainly with one parent, both parents must still consult and reach a joint decision on major decisions, which includes international travel. It is common for people to assume they hold the right to make unilateral travel decisions as the primary physical caregiver.
When a situation arises where one of the parents wants to take their child or children overseas, there are several checks and balances to ensure that it is not being done for reasons that go against the principle of joint responsibility, and more importantly, against the interests of the children.
For a start, consent must be given by the other parent before one of them can take their children abroad. Now they should not refuse consent on a whim, or to try to be difficult. Trips overseas can be a great experience for children, and to deny them that, simply to annoy an ex-spouse, is totally wrong.
Should such a situation arise, the parent who wants to take their children overseas can apply to the court for permission, by citing why it would be in the children’s best interests.
The country to which they wish to travel to also matters, because if it has signed up to the Hague Convention, it is a country which guarantees the safe passage back to a child’s native country.
However, if they have a genuine reason to believe that there is a risk to the children, or if they have a suspicion that their ex-spouse is attempting a clandestine trip overseas, without their consent, then there are steps that they can take.
The first is to contact the Department of Foreign affairs with a view to completing a Child Alert Request form. This may be submitted to the court requesting that it grants an order which in turn will mean any child who it is believed is at risk, being added to the Airport Watch List.
Unfortunately, this is no guarantee that the other parent will not attempt to take them abroad, nor that they will be stopped from boarding any plane. However, this does not mean the parent who is traveling, is not subject to the law and the principle of consent.
Should they travel abroad with children, and not had consent from the other parent, went they return they can face severe consequences for their actions.
This can include them losing all responsibility for their children and that being granted to the other parent. It can also result in a prison sentence which can be up to 36 months.
Before escalating to a courtroom, the best first step to take is mediation or Family Dispute Resolution (FDR). This can help avoid a messy court battle and save significant time, energy and stress to your whole family.
This is a legal requirement before filing for court, it also allows parents to create a clear travel itinerary that includes contact details and flight numbers for the non-travelling parent.
