Sun, Sand and a whole heap of disagreement …
Making holiday arrangements for children when parents are separated is not always a straightforward experience. It should be a time to look forward to, but can often be a source of conflict, especially when one parent wants to go abroad.
This article explores the legal implications of separated parents taking children on holiday abroad and practical steps that can be take so as minimise the potential for dispute.
Is the permission of both parents needed?
This depends on whether orders have been made under Children Act 1989. Where there are no court orders in place, neither parent can take the child out of the United Kingdom without the written consent of the other parent, assuming that they have parental responsibility. A mother will automatically acquire parental responsibility following the birth of a child. The other parent will acquire parental responsibility by being named on the child's birth certificate, married to the child's mother or through other ways such as obtaining a court order or entering into a Parental Responsibility Agreement with the child's mother. It is advisable to ensure that consent is obtained in writing, rather than just verbally. There can be issues at airport check-ins where children with different surnames to their parents have been stopped and written consent of the other parent has been requested by border control officials.
In the event that arrangements cannot be agreed, the parent wanting to go on holiday with the child will need to apply to the Family Court for permission and request a Specific Issue Order. The court will have to decide what is in the best interests of the child. It is unlikely that the court would refuse a week in Majorca, but there may be issues if there are serious concerns that the child may not be returned, especially if the destination country is not part of the Hague Convention which seeks to protect children from the harmful effects of international abduction by encouraging a prompt return to the country where they regularly live.
If one parent has a Child Arrangement (Live with) Order (previously known as a Residence Order) in place, this allows them to take their child abroad for a period of one month and does not require the consent of the other parent.
In the event that only the child's mother holds parental responsibility, the consent of the other parent is not required. However, the other parent, if they object may apply to the Family Court for a Parental Responsibility Order and seek a temporary order suspending planned trip, known as a Prohibited Steps Order. It is often good practice, in any event to speak to the other parent about any future plans.
It may be that the child's grandparents have arranged the holiday and the parents are not going. The grandparents will require written consent of each parent, in the event that that both parents hold parental responsibility.
What practical steps can be taken?
- Tell the other parent in advance of the planned trip and don't leave discussions until the last minute. Ideally try and agree arrangements at least 3 months prior to the planned trip - booking a holiday is expensive and before doing so, ensure that consent where required is in place;
- Consider alternative processes to resolve disagreements such as family mediation where solutions can often be reached in a more timely and cost effective way than going through the Family Courts. court proceedings should be a last resort and many parents can agree arrangements without court intervention;
- Provide the other parent with flight information and accommodation details;
- Agree a time when the other parent can call or have face-time contact with the child. A balance does need to be achieved so as to avoid the child feeling anxious over the planned trip;
- Be child focused and think about arrangements from their point of view.
- Remember, holidays should be an enjoyable experience everyone involved and not a source of conflict.
More often that not, difficulties arise when parents do not communicate and holiday arrangements are proposed at the last minute. This may lead to one parent withholding consent at the last minute, thus scuppering plans and contribute towards increased conflict between parents. Taking early advice is vital, as a court application may take a number of weeks to be heard by a Family Judge.
If you require advice, we have a dedicated team of specialist family lawyers based at our offices in Hull and York, who are more than happy to assist.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.