One of our family law Solicitors summarises the legal position for allowing children to be taken on holiday abroad.
As parents head into the home stretch of the school summer term thoughts will inevitably be turning to the summer holidays. For separated or divorced mums and dads there will be the discussion about how their children are going to divide their time between their parents. There may also be discussions about taking children abroad. For many parents there’s a great deal of confusion about whether they need the consent of their former spouse or partner to take an overseas holiday with their children.
The starting point is the legal concept of ‘Parental Responsibility’ (PR). This covers the legal rights, duties and responsibilities that parents have for their children. Biological mothers automatically have it.
Biological fathers who were married to the mother at the time of the child’s birth, or married later also have PR, as do unmarried fathers who are named on the child’s birth certificate where the child was born after 1 December 2003. The position is more complex for same sex couples, so if you’re in any doubt we suggest you check the position with a family law specialist.
In many cases both parents will have PR. Once you have PR, separation or divorce doesn’t take it away from you. If you’re a parent and don’t have PR you will need a court order or an agreement with the child’s mother to get it.
If you’ve got PR you have the right to make decisions about your child’s care and upbringing. Major decisions in a child’s life need to be agreed by all those who have PR and if they can’t agree then issue must decided by a court
The consent of everyone who has PR is required to take a child out of England and Wales for a holiday.
And yes, that does include Scotland! The only exception to this requirement is if there is a Child Arrangements Order specifying where a child lives (it used to be called a residence order). If you’ve got an order saying that your child’s main home is with you, you can take the child abroad for up to 28 days without needing the consent of other PR holders. That should cover most summer holidays.
The most important advice is not to leave these discussions to the last minute, especially if you think your plans will meet with opposition. Be prepared to agree to hand over details about where you’re going to stay, contact phone numbers and information about travel arrangements. It’s not unreasonable for your ex to want to have the same sort of information as you would want if they were planning a holiday abroad. If the first response is negative then talk to us at Slee Blackwell about whether we can help you arrange mediation or a Collaborative Law approach to iron out any difficulties and reach an agreement without the need for court proceedings – well in advance of your departure date.
As ever, when it comes to family law, court proceedings should be your last resort. They are always costly, both financially and emotionally. If you do have to go to court, the decision will always be based on what the court considers to be in your child’s best interests. The court will look at where you’re planning to go and what you’re planning to do there. Can safeguards be put in place to ensure the children are brought home at the end of the holiday if it’s being suggested that might not happen?
If there’s a possibility that the children might not be returned and if the country you’re planning to go to isn’t signed up to the international conventions for returning abducted children then permission may be refused, but for normal, safe and sensible journeys to typical holiday destinations permission should be granted.
If you are involved in a dispute about taking your children abroad, contact one of our specialist family lawyers at Slee Blackwell. We’ll give you straightforward, cost effective advice about your options. We’ll help you explore alternative dispute resolution and negotiation aimed at avoiding court proceedings so you are able to enjoy a well-deserved holiday with your children. Just don’t forget to send us a postcard!
Call us on freephone 0808 139 1606 or email us for further details.