A child’s passport legally belongs to the child and is only being kept safe by their parents. When thinking about who should be the main custodian of a child’s passport, in most cases, it tends to be the parent with whom the children live. There is no law or hard and fast rule in this regard; ultimately, it is up to parents to decide. Ideally, the document should move freely between each household as and when it is needed for identification purposes and international travel. But if the parents cannot agree who should retain it, mediation should be the first option, with an application to court for a specific issue order being a last resort.

What is the law regarding taking a child out of the UK for a holiday?

Any parent planning to take their children out the country who does not have a lived with order in their favour, will need to obtain the permission of all those who hold parental responsibility to do so. Parental responsibility (PR) means having all rights, duties, powers, responsibilities and authority by law over the child and their property. If you have PR, you have a say over major decisions in a child’s life, including obtaining or applying for a passport. If you do not have PR, you cannot validly give consent, nor force another with PR to give you the passport.

Passport applications and consent

If there are no orders in place or you are the parent who has the order and your permission must be sought, if you do not consent, your ex is entitled to make an application to the court for a specific issue order to request permission to travel and for the passport to be released. Unless there is a safeguarding concern, or a real risk that the other parent will not return the child to the UK, it is likely that their application will be granted.

For children under 16 (or ages 16-17 in certain cases subject to court orders), the application for a UK passport requires consent from at least one person with parental responsibility. But in some cases, additional consent may be needed if there is a disagreement between PR holders or other complicating factors.

HM Passport Office has published guidance about when additional authorisation or consent is required. This may include when there has been a court order, a dispute between parents, or other specific circumstances (a “caveat” or when someone with PR has lodged an objection) etc.

Unless an objection has been notified to HM Passport Office by a parent or other objector, a passport is usually issued. If the other parent has lodged an objection to the granting of a passport for a child, the record remains in place for 12 months, after which the person objecting is contacted to ask whether or not they wish it to continue.

There may also be circumstances where the court may ask for additional information, such as:

  • A court order
  • Confirmation of a change of gender
  • Change of name deed for a child
  • Further details of a lost or stolen passport

It is a criminal offence to remove a child from the UK without this consent unless the court has given permission.

Withholding the passport: Is it legal?

A parent with parental responsibility can physically withhold the passport from the other parent. There is no specific law that automatically makes that illegal in all circumstances. But doing so may be challenged in court. If withholding is done to prevent the other parent from exercising lawful rights (such as travelling abroad under agreed terms) or with the intention of avoiding returning the child, more serious legal implications may arise. In extreme cases, concerns of child abduction may come into play.

What can I do if my ex is withholding our child’s passport?

If the holiday has already been booked and the departure date is looming large, then you would need to make an urgent specific issue application for the release of the passport and/or permission to take the child overseas. Provided you can demonstrate there is no reason the child should not accompany you on the holiday and that you plan to return to the country following it, there should not be any issue securing the order.

Often, these situations surround a lack of trust between the parties, with the parent wishing to go on holiday being reluctant to divulge their plans in any detail and the other parent withholding the passport until they receive a full itinerary.

Parents who find themselves in this situation should  ideally put their differences aside and provide full details of their travel plans including things such as flight numbers, dates and times, contact details/address of the hotel or other accommodation.

If there is a genuine concern that the child will not be returned after the holiday and you are withholding the passport, it is important you notify the passport office that the passport has not been lost. There have been cases where a parent has indicated that a passport has been lost and they have been able to get their hands on a new one, enabling them to travel. Once a child has left the UK, it can be an extremely complex process to secure their return, depending on where they have travelled to.

What if there is a concern about abduction?

A passport order tends to be used in a situation where the person applying is fearful of an abduction imminently taking place and wishes to prevent it by seizing the travel documents of the child, and sometimes, the potential abductor. This type of order is also commonly used when a child has already been abducted from the UK and the applicant wishes for travel documents to be seized from the abductor at the point of entry as soon as they return to the UK. This means the applicant will be alerted if the abductor and/or child returns to the country because they will be stopped as a result of the port alert being in place.

For a passport order application to be made, it must be deemed proportionate and is usually for a defined period of time only. Passport seizure orders have significant implications and are therefore tightly controlled by the court. As a result, they are not easily won.

Legal remedies and court orders

When parents cannot agree, there are legal tools available via the family courts. Some key orders are:

  • Specific Issue Order: Under Section 8 of the Children Act 1989, this is a court order to decide a specific question regarding parental responsibility. This may include whether the child should be allowed to travel abroad, or whether a passport should be released. It can also be used to authorise the issue of a passport in situations where consent is withheld.
  • Child Arrangements Order (CAO): Mainly deals with where the child lives and contact, but sometimes arrangements about passports/travel may be addressed via these orders.
  • Prohibited Steps Order: This prevents a parent from taking a specified action. For example, preventing one parent from applying for a passport, or from removing a child from the UK.
  • Passport Order / Surrender Orders: In situations involving risk of international child abduction or when a court deems it necessary, a court may order that a passport be handed over or otherwise seized, or impose restrictions on who can hold it. Also, in certain cases, port alerts may be used, although this is rare in practice.

Factors the court will consider

In deciding whether to grant a Specific Issue Order or other order around release/possession of a passport, the court’s overriding principle is the child’s welfare and best interests. Some specific considerations include:

  • The child’s age, maturity, and wishes. For older children, their views will be given more weight.
  • Whether there is a real risk that the taking parent will not return the child if overseas. If there is such risk, the court is more cautious.
  • Whether there are safeguarding concerns (abuse, domestic violence, or other risk).
  • Whether the other parent has been obstructive or whether communication and travel plans are clear. If the parent seeking the passport provides full details of the trip (dates, accommodation, flights), that helps.
  • The disruption to school or home life.
  • Whether there is already a court order in place (CAO, Child Arrangements Order, etc.) and whether it contains provisions about travel or passports.

In what circumstances can an objection be registered?

An objecting parent can ask the Passport Service not to issue a passport for a child if the court has made one of the following orders:

  • A prohibited steps order
  • An order confirming that the child’s removal from the UK is contrary to the court’s wishes
  • A child arrangements order, and the objector is the person with whom the child lives
  • An order specifying that the objector’s consent to the removal of the child from the UK is required
  • An order upholding the objector’s concerns to the child having a passport or leaving the country

It is not uncommon for an objection to be registered when the child already has a valid passport. In these circumstances, it is not possible for the Passport Office to force the surrender of a passport in order to give effect to the objection.

Practical steps a parent can take

If a parent finds themselves in a situation where the other parent is refusing to hand over the passport, here are some steps to consider:

  • Try to reach agreement: Communication is key. Share full travel plans, explain why you need the passport, where you will go, when you return, contact details etc. Mediation can help when communication has broken down.
  • Check what orders are already in place: Is there a Child Arrangements Order, or does a CAO cover travel with the child? Does it say anything about passports? Is there already a court order restricting removal from the jurisdiction or travel abroad?
  • Consider lodging an objection or caveat with HM Passport Office: If you have PR and believe that a passport should not be issued without your consent, you may lodge a caveat/objection. HM Passport Office guidance allows for this in certain situations.
  • Apply for a Specific Issue Order or Prohibited Steps Order: If agreement fails, you can apply to the family court under Section 8 for a Specific Issue Order asking for the passport to be released or authorisation to obtain one. If you believe there is risk of abduction or mis-use, you might seek a Prohibited Steps Order to prevent certain actions.
  • Urgency: If the date of travel is imminent, an urgent order (“without notice”) may be possible in some cases, but only where circumstances justify it (e.g. risk of the child being taken abroad and not returned).
  • Gather evidence: Travel plans, messages/emails showing attempted communication, proof that the other parent withholds the passport, any prior agreement. Any history of non-return, or of threats of abduction, etc.