With the summer holidays upon us, many families will be planning holidays abroad. For separated and divorced parents this can be a particularly difficult time of the year. Jenna Atkinson from Harrison Drury’s divorce and family law team considers the issues that may arise where agreement cannot be reached and outlines what steps can be taken to resolve matters regarding holidays abroad.
What is the law regarding taking children abroad?
It is worth noting that no-one can remove a child from England and Wales for any reason, including for holidays, without the permission of every person who has parental responsibility or permission of the court.
Written permission of anyone with parental responsibility is required. It is a criminal offence to remove the child without such permission.
Parental responsibility is defined in s3 (1) Children Act 1989 as “all of the legal rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
A parent should not unreasonably withhold consent. The court will frequently ask itself: “is it in the child’s best interests to go on the holiday”. This indeed is a wide-ranging question and there can often be strong arguments made by both parties.
However, communication and compromise can often be key to a happy summer break for everyone involved. If matters cannot be agreed in relation to the holiday, then it is vital to seek legal advice as a matter of urgency before making any firm arrangements.
What to do if the other parent will not consent to taking your children abroad
If the other parent will not agree to you taking your child(ren) abroad there are a few steps to consider:
- Discuss your plans: The first step would be to try to discuss what the reasons are for not agreeing. It may be that a compromise can be reached, for example often it is agreed the child can Facetime every few days when away to keep in touch with the other parent. It is often suggested as a way of trying to keep things amicable, to also provide full details of flights and accommodation, for transparency and in case of emergencies.
- Come to an agreement via a solicitor: If discussions do not prove successful between you both, matters can often be agreed via solicitors’ correspondence. If this does not work, a court application may be required.
- Seeking mediation: In most situations before you can make an application to the court, a Mediation Information and Assessment meeting is required (MIAM). The mediator will be able to discuss whether the case is suitable for mediation. If it is, then your ex-partner will be invited to attend a MIAM and then, if appropriate, a joint session will be set up to discuss matters. Mediation can often be a very productive way to discuss matters and reach an agreement with a neutral person who is trained to assist.
- An application to the court: If an agreement cannot be reached, then a court application for a Specific Issue Order may be necessary. Sometimes an application can be heard on an urgent basis but often applications can take weeks to reach a courtroom, so it is vital that advice is sought at the earliest opportunity. The welfare of the child will be the court’s paramount consideration and the court will consider all factors with reference to what is called “the welfare checklist” in making such decisions.
The advantages of forward planning
If you are planning to take your child(ren) abroad for a family holiday and need permission from their other parent or guardian, it is advisable to seek legal advice at the outset of matters. Each case is unique and has different circumstances and therefore the prospects of success can vary.
When formulating a plan in relation to holiday contact – whether you plan to go abroad or not, it is advisable to address not only the immediate holidays approaching; think about arrangements for Christmas and Easter too, as well as other special occasions such as birthdays. It may also be worthwhile to make plans for the next few years so both you and your ex-partner have the chance to share key calendar dates with your children.
The use of a calendar system may also be beneficial, as the visual representation of where the child will spend their holiday time can provide clarity for all involved, while being a helpful tool to prepare the child for any upcoming holiday contact.
If you wish to seek advice regarding holiday arrangements with your children, or for any other family matter, please contact Harrison Drury’s divorce and family law team on 01772 258321.