Legal Considerations when Children Travel Abroad Without Parents

Last revision: Last revision:9th November 2019

There are many reasons why Australian children might be travelling without one or more of their parents. Perhaps one parent is travelling with the child, and the other parent had to stay home. Perhaps the parents are divorced. Perhaps the child is travelling with a guardian or some other trusted adult such as a grandparent or family friend. Maybe the child is travelling with a school group or sports team. Or maybe the child has friends or family overseas and is travelling alone to stay with them. Whatever the reason, it is important to think about any potential legal issues ahead of time. Discovering these issues once the child is at the airport, or out of Australia, can be a stressful and expensive problem.

Travel insurance

It is important to make sure that the child has appropriate travel insurance in place. The insurance should cover the entire period that the child is travelling, and should cover all of the activities that the child is going to undertake while overseas. It should also take into account any medical conditions which the child may have.

For example, many travel insurers exclude cover for activities which they deem dangerous, such as skiing, canoeing, horse riding or mountain biking.

As painful as it is, unfortunately it is important to understand the fine print in the insurance policy when it comes to these matters. For example, even if the insurer claims to cover a certain activity (such as by stating so on their web page), the fine print of the policy will tell you the exact conditions on which they will and will not cover it. To illustrate this point, many insurers offer coverage for skiing, and make this apparent by placing images of skiers on their web page. However, it is also quite common in these policies for the fine print to confirm that while skiing on piste is covered, skiing off piste is excluded.

If a child (or anyone for that matter) is injured while taking part in an excluded activity, then there may be an enormous medical bill to deal with, or even worse, it may be difficult to even get the medical assistance the child requires. For example, if the insurance policy excludes skiing off piste, and the child injures themself while skiing off piste, then all of the associated emergency treatment (such as helicopter evacuation) and medical costs might not be covered. In some locations it might be difficult to even get a helicopter to show up, if the appropriate insurance is not in place.

The responsible adult on the trip is in the best position to consider which activities the child is actually going to be undertaking, and to make sure they are covered in the relevant insurance policy.

Therefore, if the responsible adult did not purchase the insurance policy (perhaps because the child's parents purchased it) and the responsible adult is planning to have the child take part in some kind of activity which could be excluded, then it may be necessary to notify the parents ahead of time, and make sure that the relevant insurance is in place.

For example, if the responsible adult is organising a school trip during which the children are going to ride horses and go canoeing, it may be necessary to send a letter to parents advising them about these plans, and requesting that they carefully check their insurance policies to ensure that these activities are covered.

The responsible adult may also decide it is necessary to have a copy of the child's insurance policy sent to them ahead of time, so that it is available in case of emergency.

If the responsible adult has any concerns about insurance or about the coverage provided under the relevant policy, it may be helpful to speak to a customer service representative at the insurance company. However, if doing this, take what they say with a grain of salt - the question of whether or not the child is covered ultimately comes down to the actual wording of the insurance policy. For further assistance it may be necessary to seek legal advice.

In the event that it is necessary to make a travel insurance claim, we have a Letter to Claim from Travel Insurance available.

Family court proceedings or parenting orders

If parenting proceedings in relation to the child are underway in Australia's Family Law Courts, then the child may be prohibited from travelling outside Australia except with the consent of both parents (or of anyone else with parental responsibility for the child).

Likewise, if parenting proceedings have been concluded, and parenting orders have been made in relation to the child (dealing with such matters as parental responsibility for the child, where the child may live, when the child may spend time with a person, or when the child may communicate with a person), then the child may be prohibited from travelling outside Australia.

There are exceptions however. A child may be permitted to travel outside Australia as long as such travel is expressly permitted in writing by both parents (or anyone else with parental responsibility for the child). A Travel Consent Form may help provide evidence for this purpose. A child may also be permitted to travel outside Australia if there is a court order expressly allowing for such travel. Such a court order may be sought, for example, if there is a legitimate reason for the child to be travelling outside Australia (such as for medical treatment), but one of the parents is refusing to provide their permission.

There can be significant penalties for trying to take a child out of Australia in contravention of these laws. This may include imprisonment of up to three years.

Be warned also that proceedings in Australia's Family Law Courts can take a long time. If seeking a court order to allow the travel, this will need to be done well in advance. Similarly, if a parent is currently involved in parenting proceedings, and wants to travel overseas with the child at some time in the future, it can be a good idea to deal with those anticipated travel plans as part of the current parenting proceedings.

Therefore, if there are any doubts about parenting proceedings or parenting orders (including if help is needed to understand them) then it may be necessary to obtain legal advice.

Departing Australia

Provided that parenting proceedings are not underway, and parenting orders have not been made, then children are able to depart Australia alone, with a guardian, or with one or both of their parents. The child needs to have a valid passport and any appropriate visa for their destination - just like adults.

Departing Australia without an adult

Many children who travel without a parent travel with another responsible adult instead (such as a family friend or a teacher). However, in some other cases, children travel alone. They might be taken to the departure airport by one adult, and met at the arrival airport by another.

As far as Australian customs and immigration is concerned, there are no restrictions on this. A child who has a valid passport and visa for their country of destination, is allowed to leave Australia.

However, it is important to also consider the entry requirements for the country of destination (as well as any transit countries), and the relevant airline rules. These matters are further discussed below, under the headings "Airline Rules" and "Check foreign country requirements ahead of time".

Airline Rules

Make sure to consider any relevant airline rules, such as restrictions on what can be taken in carry-on luggage.

Restrictions on aerosols, liquids, powders, gels, and flammable items could apply to some common products such as baby foods.

The responsible adult should make sure they know what is in the child's bag, or are confident in the child's ability to comply with airline rules. Teenagers may have no problem packing appropriately, but there could be problems if a younger child has prohibited items in their bags.

Airline rules for children travelling without an adult

The relevant airline will have rules that deal with this situation. It is important to check these rules well in advance, and to notify the airline that the child will be unaccompanied, so as to avoid any complications on the day of travel.

In many cases, airlines do not accept unaccompanied children under 5 years of age. Over that age, some airlines may accept the child, but only on direct flights and/or only on domestic flights. Or, for example, they might say that children aged between 5 and 11 years old can travel on direct flights, and children aged 12 and older can travel on connecting flights.

Most airlines also offer a service (for a fee), whereby airline staff will accompany the child from origin to destination. In fact for some airlines this is the only way that children are allowed to travel without an adult.

This service may involve a handover at the departure airport, from a responsible adult (such as a parent) to the airline staff. The airline staff will then handover the child to a responsible adult at the arrival airport. In most cases, there will be airline forms to fill out ahead of time, and the responsible adults will need to provide their full names and ID documents. This is something that needs to be organised ahead of time, so contact the airline well in advance.

The Australian Government's Smart Traveller website provides further information about this matter.

Arriving overseas

While it is relatively easy for children to depart from Australia, entering a foreign country may be another story. This is where it really pays to be prepared.

Once the child has got as far as a foreign port of entry (such as the airport or ferry terminal in a foreign country), they are in a precarious situation. If the border officials do not grant entry, then they may be forced to purchase a return flight straight back to Australia. Obviously, this can be very expensive, and can put an abrupt end to any travel plans.

Check foreign country requirements ahead of time

In addition to a passport and visa, many foreign countries require children travelling alone, with a guardian, or with only one parent, to carry additional documentation. This may include, but is not limited to:

  • a Travel Consent Form - confirming that the child has permission to travel without one or more of their parents or guardians
  • a certified copy of the child's birth certificate
  • if the child is adopted - adoption papers
  • if the adult travelling with the child has sole custody of the child - a copy of any separation, divorce or custody documents confirming the custody arrangements
  • if the adult travelling with the child is the legal guardian of the child - a copy of any court order granting guardianship

Foreign country requirements for children travelling without an adult

In many cases, the foreign country may have even more stringent requirements for children travelling alone (without an adult at all). It is very important to check on these ahead of time and to make any necessary preparations, so that the child is not met with the dangerous and extremely stressful situation of being refused entry to the destination country.

Further information about specific requirements can be obtained from the consulate, embassy or high commission of the relevant foreign country.

Local laws and customs

As always, it is important to be aware of local laws and customs, and to make sure that all parties (including the child) respect them.

Some practices which are common in Australia, such as breastfeeding in public, could be problematic in another country. Other practices may be legal in Australia but not in other countries. For example, while smacking children is controversial in Australia, it is still legal (for better or worse). In some other countries this is not the case, meaning that if a person engages in it, they could be met with criminal charges.

In other cases, certain behaviours may be illegal in both Australia and the foreign country, but the penalties could be vastly different. We only have to think of the many examples of Australian tourists who have faced imprisonment and/or capital punishment for drug offences in foreign countries, to see what a nightmare this could become.

For teenagers, particularly on group trips, it is not uncommon to get a bit carried away while overseas. It is also common for children of this age to make errors of judgment from time to time. Therefore it is vital to consider any relevant local laws and customs ahead of time, and consider whether particular items need to be packed (such as culturally sensitive clothing), or whether a conversation needs to be had with the child, to make sure they understand the situation and the risks involved.

The Australian Government's Smart Traveller website provides further information about important considerations for particular destinations.

In conclusion

There are many legal considerations to take into account when travelling overseas with children.

This guide has highlighted some common considerations, but it is by no means meant to be a complete list. Your legal situation will be affected by your status with regards to the child, as well as the child's destination, and the nature of their travel plans.

In any event, planning ahead, and addressing any issues well in advance will help to prevent problems while the child is away.

If in doubt, seek legal advice.

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