With the May half-term school holiday now a distant memory, and only a matter of weeks then left until the Summer Holiday is upon us all, many separated parents will be thinking about taking their children on a summer break out of the country.
For many, sharing holiday time has never been an issue, but what if the Summer Holiday arrangements are not agreed upon?
Parents are urged to remember that you can only legally take a child abroad if you have consent of the other parent, or anyone else with parental responsibility, or you have a Court Order in place that specifically then allows for that child to leave the jurisdiction.
What is parental responsibility?
Parental responsibility (PR) is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
In all cases, the mother will automatically have PR but the biological father will only ever obtain PR if he was married to the mother at the time of the birth, he is named on the birth certificate, has entered into a Parental Responsibility Agreement, or he has applied to the Court for a Parental Responsibility Order, or has been appointed as a guardian, has obtained a Child Arrangements Order or has married the mother after the child is born.
Do I need to seek the consent of the other parent?
If you are the parent named on a Child Arrangements Order as the parent that the child lives with, you can legally take your child out of the United Kingdom for up to one month without the consent of the other parent or persons with PR however, that being said, it is generally prudent to obtain legal advice and with a view to then obtaining the consent of those other people with PR where possible.
A parent who is not named in an Order as the person with whom the child should live mustseek the consent of the other parent or persons with parental responsibility, before the child is taken on holiday. In many cases, travel to another jurisdiction requires that documentary evidence be produced to show that all parties with PR have consented to the travel arrangements.
Can the other parent stop me from taking our children on holiday?
If there is a Child Arrangements Order in place, the other parent can still object and make an application to the court for a Prohibited Steps Order. This means it would then be for the court to decide whether the holiday can go ahead or not, as the case may be.
When considering any application about a child, the Court’s paramount consideration will be the child’s welfare.
Generally, it will be considered that a holiday is in the best interests of the child and the Court will not look favourably upon a parent who withholds their consent unreasonably. Clearly when considering the specific issue, the Court will want full particulars of the travel arrangements including the destination, the place where the party will stay, the duration, the arrangements for insurances and any other particulars that will allow the Court to consider the question fully.
What happens if there is no Child Arrangement Order in place?
If there is no existing Child Arrangement Order in place, either parent can legally take the child abroad without the consent of the other however, to avoid any difficulties immediately before setting off to travel, we would strenuously suggest that you seek legal advice with a view to then disclosing to the other party the intention to travel and to try and then reach agreement to the arrangement so that nothing at the last minute prevents the holiday from taking place.
If you were to elect to travel and not inform anyone, then you may risk an application being made by the other party for a Prohibited Steps Order which would then stop you from travelling abroad and furthermore, in certain cases, an allegation of child abduction could be made (although this is a worst case scenario).
If then the consent of the other parent is withheld for whatever the reason, good or bad, then you can make an application for a Specific Issue Order, with a view to then asking for the Court’s permission to travel and to allow you to then remove the child or children from the United Kingdom for the purposes of the holiday, but for the Court to be able to make a decision, you need to make your application in good time so that it can be fully considered.
So what would you recommend?
Court proceedings can be lengthy, costly and also stressful for all the parties involved. It is therefore in all parties’ interest to try and reach an amicable agreement. This can be done through effective correspondence and communication between the parties or if that is not possible the parties could attend mediation or ask their respective solicitors to attempt to resolve matters through correspondence.
Parties should take into consideration each other’s plans and work commitments. Parties should discuss these as soon as possible and provide their respective dates for summer holiday contact. This should not be left to the last minute. Parties should ideally not book anything until there is an agreement in place.
When a holiday booking is made, the parties should provide to one another details of accommodation, flights and proposed contact with the other parent via email/telephone etc whilst the child is abroad.
It is always desirable to get consent in writing from every person who holds parental responsibility for the child. If you have written consent, take a copy of this with you to the airport as you may be asked to show this document in certain places.
If consent is withheld for whatever the reason, you will need to consider making an application to the court for a Specific Issue Order but for the Court to be in any position to make a decision, such an application needs to be made in good time to allow for the matter to be properly investigated and reported upon and then determined.
What if I want to stop a child from travelling abroad?
If you are concerned that someone plans to travel abroad, then you can ask the Family Court to make a Prohibited Steps Order, which would then have prevent the child or children from leaving the jurisdiction.
If you are concerned that a child has already left and gone abroad without your consent, you need to speak to one of our specialist solicitors as soon as possible for help to seek a Recovery Order and with a view to then having the child or children returned to your care at the earliest opportunity.
In conclusion then…
Most children will now be counting down the days to their summer holidays. Parents can ensure an enjoyable holiday by ironing out any problems as soon as possible and making sure that arrangements are made taking into the consideration the children’s best interests.
If you require further information or would like to make an appointment please contact David Banks, Solicitor on 0191 269 6871 or email firstname.lastname@example.org for immediate legal advice and help.
In certain cases, we are able to offer legal aid help and assistance.
Disclaimer: This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.