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For divorced or separated parents, taking children away on holiday can sometimes give rise to serious conflict.
Under English law, taking a child abroad without the specific consent of everyone with parental responsibility could in some circumstances be considered abduction.
The mother of a child always has parental responsibility. The father of a child will have parental responsibility if he is married or was married to the child’s mother, is named on the child’s birth certificate, has a child arrangements order stating that the child lives with him, or has entered into a parental responsibility agreement with the child’s mother.
Following a divorce or separation, a parent who wants to take their child/children out of the country on holiday, should therefore seek approval from the other parent if they have parental responsibility and anyone else who shares parental responsibility, preferably in writing and providing contact details.
There is one notable exception. You can take a child out of the country for up to 28 days without needing consent if you have a child arrangements order specifying that the child lives with you and provided there is no other court order in existence preventing you from doing so.
As a first step, you should instigate discussions with your former partner as soon as you begin arranging your holiday. Being open with the other parent and keeping them informed of your plans often helps to keep their mind at rest and can settle any concerns before they escalate into major problems.
It is also important to ensure that you will have access to the child’s passport, any medication, and other essential items that you will need to take on holiday with you. If these are in the other parent’s possession, it is advisable to plan to collect them ahead of your departure date.
The law in relation to taking children away partially depends on where you are travelling to. If you are planning a holiday within England or Wales, there is no legal requirement to seek consent from the other parent.
However, in the interests of preventing conflict and being considerate toward the needs of the other parent, it is sensible and advisable to obtain permission wherever possible.
If planning a holiday outside of England and Wales (so even trips to Scotland fall in this category) consent is required as explained above.
Under English and Welsh law, ‘abroad’ means anywhere outside the jurisdiction of England and Wales, hence any country other than England or Wales. Therefore, taking your children outside of either of those two countries would require the consent of both parents if they have parental responsibility.
From the other parent’s perspective, the thought of their children going away without them, especially to a different country, can be an extremely daunting scenario to accept.
The best approach to reaching an agreement with your ex-partner is to have a calm and rational discussion, to be open and transparent and to provide as many details as possible, enabling both sides to see and understand the other’s point of view. Remember that in most cases a holiday abroad is likely to be an enjoyable experience for a child and an opportunity to learn about different countries and cultures. If there is a legitimate reason why your former partner would not want you to take the children on holiday, it is possible that by talking things over you will discover something you can do to alleviate those concerns.
For example, if your holiday coincides with existing custody arrangements, it may be reasonable to offer your ex-partner additional time with the children in lieu of the time lost due to your holiday.
If an agreement can be reached, a written and signed statement of permission may be helpful in preventing future disputes, which can sometimes be brought about by a parent changing their mind or introducing new concerns at a later date.
If you cannot reach an agreement between yourselves, mediation can sometimes help.
In a worst-case scenario, if your former partner will not consent and as a last resort, you could consider an application to court for a specific issue order, seeking permission from the court, effectively overriding the other parent’s decision. The court will decide by reference to what the court believes to be in the child’s best interests. Such applications can be a costly process for both parties.
If you find yourself at this stage, professional legal advice is crucial.
If you have a legitimate concern about your children leaving the country with your ex-partner, you may be able to obtain a prohibited steps order to prevent them from taking your children abroad.
The courts will always focus on the welfare of the children as their main priority, so there will need to be a strong reason to believe that the children will be unsafe or otherwise negatively affected by going away with the other parent.
If you are experiencing difficulties regarding taking your children on holiday and require advice about how best to proceed, contact our family law experts on 01332 226 174 or complete the form below.
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