This is such a common question and one which pops up during the year. But what do you do if you are separated and you do not have the children’s passports in your possession?
A child’s passport legally longings to the child and is only really being kept safe by their parents/parent. A child’s passport is usually retained by the parent whom the children live with but it is not uncommon for the passport to travel between the parents as and when they take the child away on holiday. This is considered to be the sensible approach. There is no law or rule regarding this issue, and ultimately it is for the parents to decide between themselves. In some cases, there may be a Court Order reflecting which parent should hold the passport.
Taking a child out of the jurisdiction for a holiday
Any parent who wishes to take their child out of the country who does not have a ‘Live With’ Order in their favour, will need to seek permission of all those who hold parental responsibility to do so. It is a criminal offence if you fail to seek this permission unless the Court have granted you permission to do so unless you have a Live With’ Order in your favour which allows you to remove the child from the jurisdiction for up to 28 days without seeking permission of any other persons who hold parental responsibility.
If you are unable to obtain the permission of any other persons who hold parental responsibility, then you need to first consider mediation and if unsuccessful seek legal advice regarding an application to Court for a Specific Issues Order to seek the Courts’ permission to travel and for the passport to be released. In such instances, it is likely that the application will be granted providing there are no safeguarding concerns or any concerns that the parent may not return to the Auckland with the child.
Can a parent withhold a child’s passport from the other parent?
If the holiday as already been booked and the holiday is fast approaching, then you will need to make an urgent application to the Court for a Specific Issues Order for the release of the passport and to remove the child from the jurisdiction for the purposes of a holiday. Providing there are no safeguarding concerns regarding the child accompanying you and there are no concerns about returning to the Auckland, then there should be no real issue in such an application being granted.
By experience, issues often arise due to a lack of trust between the parties which is usually stemmed from one parent being reluctant to give any details on their planned holidays and the other parent therefore not providing their consent or they withhold the child’s passport. What parents must prioritise is the best interests for their child and place their own differences to one side and provide the necessary details of the holiday to ensure that the child can enjoy a holiday with that parent.
Who can apply for the child’s passport?
If you have parental responsibility for the child, you can apply for their passport. If you do not have parental responsibility then you need to seek the consent of those who hold parental responsibility. All individuals with parental responsibility must consent to the child obtaining a passport. It is also important to note that only one parent needs to apply for the passport, but that both parents’ details should be included on the passport application. As long as no objection has been lodged with HM Passport Office by a parent, the application should be granted and the passport issued. Consent is still required from all parents with parental responsibility.
Comment
A parent with parental responsibility can refuse to hand over the children’s passport and even though this is an unpleasant situation, the only solution is to consider mediation in the first instance followed by an application to the Court to attain the child’s passport and take them on holiday abroad.
If you have booked a holiday and your ex-partner is refusing to release the passports, then you will need to consider making an urgent application for a Specific Issues Order to the Court for the release of the passport.
How can Nelsons help
Rina Mistry is a Senior Associate in our family Law team, which is ranked in Tier One by the independently research publication, The Legal 500. Rina advises on a wide range of family law work, including private children law matters.
If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Rina or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
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