With Easter now only a number of weeks away and with more countries allowing families to enter without undue restriction or prohibition, serious consideration is being given once more to jetting off abroad for an Easter or Summer Holiday break, and the potential of holiday contact issues.
For many parents who might be separated such that family time has to be in some way shared, the sharing of holiday time has never been an issue, but what if holiday plans or arrangements are not agreed upon?
As a starter, parents are reminded that you can only legally take a child abroad if you have the expressed consent of the other parent or anyone else with parental responsibility, or you have a Court Order in place that specifically allows for that child to leave the jurisdiction.
What is parental responsibility?
Parental responsibility is defined by section 3 (1) of the Children Act 1989 as being “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”.
The term “parental responsibility” attempts to focus on the parents’ duties towards their child rather than the parent’s rights over their child. In practical terms, when certain decisions have to be taken about a child, all those persons that have parental responsibility are allowed to have a say in that decision, in reality, the ‘day to day’ decisions are more often than not taken by the parent the children live with but in relation to more important decisions such as education provision (where the child goes to school), consenting to medical treatment and access to medical records and determining the religion the child should be brought up with should all be decisions that are jointly arrived at.
Who has parental responsibility?
- Mothers automatically have parental responsibility from birth;
- A father who is married to or in a civil partnership with the mother will automatically have parental responsibility and will not lose it if divorced / the civil partnership is dissolved);
- Second female parents who are married to / in a civil partnership with the biological mother at the time of conception (unless conception was the result of sexual intercourse or the wife/civil partner of the biological mother did not consent to the conception);
- Fathers who are not married to or in a civil partnership with the mother do not automatically have parental responsibility;
- Step-fathers and step-mothers do not automatically have parental responsibility
- Grandparents do not automatically have parental responsibility.
How can a father who is not married to or in a civil partnership with the mother obtain parental responsibility?
A father who is not married to or in a civil partnership with the mother can obtain parental responsibility by:
- Marrying or entering into a civil partnership with the mother;
- Having his mane registered or re-registered on the birth certificate if his name is not already registered with the mother’s consent;
- Entering into a Parental Responsibility Agreement with the mother;
- Obtaining a Parental Responsibility Order from the Court;
- Having obtained a Residence Order prior to 22 April 2014 or
- Being named as the resident parent under a later Child Arrangement’s Order.
Do I need to seek the consent of the other parent to go on holiday with my child?
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 parental responsibility however, that being said, it is generally prudent to obtain legal advice and with a view to then obtaining the consent of all those other people with parental responsibility where possible to avoid later issues and argument that you may have ‘abducted’ the child.
A parent who is not named in an Order as the person with whom the child should live must seek 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 parental responsibility 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, and don’t presume that you can take the child on holiday or that you can obtain an order quickly; only in cases of genuine emergency are the Court able to consider applications without notice (known as ex-parte) and making any application at the last minute is likely to be costly in more ways than one.
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 parties will stay, the duration, the arrangements for insurances and any other particulars that will allow the Court to consider the question fully before reaching a decision.
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 an agreement (ideally then in writing as evidence) 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 prevent the child from travelling abroad and furthermore, in certain cases, an allegation of child abduction could be made (although this is a worst-case scenario).
If the consent of the other parent is withheld for whatever the reason, good or bad, then you yourself 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 – as above, having the issue determined can take time and so it is highly recommended that you make any application as soon as it is contemplated by you that you might want to take your child abroad on a holiday and if the other parent objects to that. Booking a holiday first and then later asking for permission from the other holders of parental responsibility could ultimately prove costly.
So what would you recommend?
Court proceedings can be lengthy, costly and stressful for all involved including in certain cases the child concerned, it is therefore in all parties’ interest to try and reach an amicable agreement.
With that view in mind, reaching an agreement without having to go to Court can be done through effective correspondence and communication between the parties at an early stage 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 if this is say fixed by work (for instance, teachers are often only able to take a holiday around school term times set by others). As stated throughout, sharing information about commitments and plans 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, for certain countries having written consent evidenced is a pre-requisite if you are travelling with say a grandparent rather than a parent so having evidence in writing is the ideal to avoid issues on entry to certain places.
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 reason, you will need to consider making an application to the court for a Specific Issue Order to then allow specifically for the travel arrangements planned to take place but for the Court to be in any position to make any decision, that application needs to be issued in good time to allow for the question of whether it is appropriate for the travel arrangements to take place or not to be properly investigated, reported upon and if needs be time allocated to it then to determine in the absence of any agreement.
What if I want to stop a child from travelling abroad?
If you are concerned that someone plans to travel abroad with your child and you do not agree with the travel arrangements made known to you, then you can ask the Family Court to make a Prohibited Steps Order, which would then 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 (so in effect, has been abducted), you need to speak to one of our specialist child abduction 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 with appropriate help from others.
In conclusion then …
Most children will now be counting down the days to the Easter and Summer holiday period so that they can go on holiday but for some this may also cause anxiety if the parents are not agreed on arrangements. To ensure that all concerned can go on holiday abroad or even to have a staycation, it is best to make any contemplated plans to travel known at the earliest opportunity, so any concerns can be made known, solutions and compromises found and made, thus allowing arrangements to take place in accordance with the child’s best interests. Communication is key, sharing of information timely pivotal but if despite best efforts reaching agreement proves elusive, then at Prism Family Law, we have the expertise to help.
In certain cases, we are able to offer legal aid help and assistance subject to criteria administered by the Legal Aid Agency. For more information as to eligibility please refer to eligibility guidance on the UK Government website.
This article 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.