Child Arrangement Order when Dad in Prison

[Ebunniey]

Hi everyone, hoping for some guidance on this, I know I would probably need to speak to a solicitor because the case is peculiar but would be nice to hear from anyone who has gone through something similar.

Going through divorce with soon to be ex-h, we have an 8 year old child together. Ex is in prison for DV (physical and sexual) against me, and there's a restraining order preventing contact from him.

He's serving a 10 year sentence and would probably be out halfway through but would be deported back to his country of origin as he's not from the UK, his home country is not in EU btw. Ex has been in prison for a little over a year and has not initiated contact with DC in that time.

I've been wanting to travel to Australia for Christmas with DC so applied for legal aid for CAO back in August but was refused as the legal aid agency said I have residency rights and can travel with DC as dad is in prison, they also said I haven't shown that I've tried to get consent from him before applying for a CAO (this doesn't make sense because how do I get consent when there's a restraining order??). My solicitor didn't agree with the refusal and appealed but the appeal was refused too.

So I think what I'm asking is, has anyone been in this position before and what did you do? I'm thinking of applying for a specific issues order as that might be quicker than the CAO, or just risking it and travelling without it?

As you are the parent with care/primary parent/resident parent (not sure which is the correct current legal term) you don’t need his permission to travel for holidays. There may be a limit of a month.

This is wrong. As he has PR, OP needs his consent to take her child out of the country unless she has a CAO naming her as someone with whom the child is to live (in which case she can take her child out of the country for up to one month) or a Specific Issue Order allowing the holiday.

@Ebunniey - You should apply for a CAO. An SIO will only cover you for one trip. A CAO will cover you for any trips. You could risk it and travel without, but you may be refused boarding at the airport or refused entry in Australia. There is a good chance you would get away with it, but that is the risk you take.

Can your solicitor contact him on your behalf asking for written permission? Everything would go through the solicitor not you

Get your solicitor to contact his solicitor to arrange consent. It’ll be pricey, just to warn you.
I’d apply to the courts to remove PR for this very reason: You’re the primary carer and any decisions that require joint consent will be an absolute nightmare for you.
It’s very difficult to remove PR but it isn’t impossible. I’ve been able to do this. My ex husband is also serving a sentence. Took me nearly 4 years to divorce him. I hope your divorce moves faster.

Assuming OP is in England or Wales, she should not apply to the courts to remove his PR. As he got PR by being married to her, it cannot be removed. The courts can limit the extent to which he can exercise his PR, but they do not have the powers to remove it completely.

@prh47bridge thank you for your response. I’ve read so many posts here on travelling out of the country without consent or a CAO and I really do not want to risk it with how pricey the tickets to Australia are.

My thinking (anyone correct me if this is wrong) is to apply for the SIO as I think it’s quicker and yes it may just be for this trip. Then after the trip I can apply for the CAO.

Thanks for your response @RandomMess , I thought that may be the case but legally I would require a CAO to take her out of the country without issue - and for rest of mind.

@Theunamedcat thank you, I’ll give this a go, I can imagine he’d just not respond like he did with the divorce. I had to apply for a court order to proceed eventually. Let’s see what happens with this one, fingers crossed!

You can go back to court and show proof you tried

I am sorry but you are completely wrong. The court can terminate PR.
My ex husband and I are both British, we married here, divorced here. Kids born and raised here. And yes, he was on their birth certificates.
You CAN apply to the courts to remove PR.
It doesn't mean it will happen. But you certainly can apply. I did. My ex's PR was not deemed 'limited' or reduced, but completely terminated. It is rare that this happens and I am aware that mine is one of very few cases. But I think there would be more cases if mothers weren't so discouraged from applying to remove PR.

I travelled to Germany with my son who was 12 at the time and was stopped at the border and asked for proof of consent for him to travel. I produced a written consent letter signed by my ex with the full details of the holiday on it. My son has a different surname to mine and I was very glad to be stopped as it shows they were being vigilant. You never know if they will ask, and they could’ve refused entry without proof. Don’t take the risk.

I am correct. You are the one who is completely wrong.

In England and Wales, the courts can terminate the father's PR if he got it through being on the birth certificate, or through a parental responsibility agreement, or by a court order. They cannot terminate PR if the parents were married at the time the child was born. If the parents were married, the only way the father's PR can be terminated is by adoption. Children Act 1989 Section 4.

If your ex-husband had only gained PR by being on the birth certificate you may have been able to have his PR removed. However, if you were married at the time your children were born, your application to have his PR removed was doomed to failure. No matter how strong a case you made, you would have lost because the courts do not have the power to remove PR from a father who was married to the mother at the time of birth. There was nothing to stop you applying, and there is nothing to stop OP applying. I did not say she could not do so. But any application to remove PR from a father who was married to the mother at the time of birth will always fail, so it is pointless making such an application.

I’m afraid that @prh47bridge is correct.

Under section 4 of the Children Act 1989, courts can terminate PR acquired by unmarried fathers. However, PR acquired through marriage (under section 2(1)) cannot be terminated except through adoption.

It’s pretty awful but that is the legal fact of the matter.

Oh my goodness you don't need a CAO! You may technically need permission from everyone with PR but you realise this is only enforced when someone with PR actually applies to restrict someone from taking a child out of the country? He's in prison, he's not going to be able to stop you from going on holiday. I get that you're anxious and want to do it right but the literal court has told you that you don't need a CAO. If the border force randomly ask you if you have permission from the father you can inform them that he's in prison - take copies of correspondence if you feel more comfortable doing that. But it won't happen.
Also on the point of a restraining order that only applies to him contacting you - if you want to contact him for permission or to notify him you can do via your solicitor. I'm confused about the advice your solicitor is giving you if you didn't know this.

but you realise this is only enforced when someone with PR actually applies to restrict someone from taking a child out of the country

This is wrong. It is true that many people take children out of the country without the necessary permission every year without encountering problems. But some find that they are denied boarding or are refused entry at their destination because they cannot show that they have the necessary consent or court order in place. That happens even when the absent parent has not applied to restrict the parent or reported them to the authorities.

Forgot to mention I’m in England. Ex and I were married at the time of DC’s birth so removing PR would be a nightmare, also I don’t want to pursue that as it wouldn’t be worth the time and money involved. I just want to be able to travel with DC without having to inform ex or ask for his consent. The CAO seems to be the best long term solution for this.

Thanks for your response, but this is just me thinking, isn’t it easy enough for such a letter to be faked? Unless the letter gets notarised which I don’t think a lot of people would bother doing because of how expensive it is. I wouldn’t want to take the risk either way after paying so much for a holiday and then get denied at boarding or the border.

It contains a contact details to verify. I suppose it could be faked, but we didn’t have a problem. We travel to North America quite a bit and always have it. Have been asked a couple of times. There is a standard form we got online.

For anyone who comes across this thread later:
Long story short, I applied for the CAO and it was granted!

I applied by myself without a solicitor. I filled in the forms, created and submitted my position statement to the court, had the safeguarding call with CAFCASS (thankfully CAFCASS agreed my daughter should live with me, there really wasn’t any other option) and ‘appeared’ in court via CVP.

Ex refused to show up via the link sent to him and the order was made in his absence. That worked out in my favour so can’t complain! We might not be able to make the Christmas trip to Australia again because the flight prices would cost all our limbs combined but we’re now looking to travel in Q1 2026.

Thanks to everyone who commented, and I do hope this helps someone.

Well done op! So happy for you