Beware of Breaking the Law When Taking Your Child on Holiday After Divorce or Separation
This is the time of year when parents are looking for holidays for them and their children.
It’s a time that is often busy for family lawyers, due to the rise in disputes regarding separated parents wanting to take their child on holiday.
It’s extremely important to determine who has parental responsibility. If both parents have parental responsibility, it is a criminal offence to take your child out of England and Wales without written permission from the other person with the responsibility and there are no child arrangements orders or any other restrictions in place.
Karen Brookes, Wosskow Brown Chartered Legal Executive, said: "Most separated parents who have not been through Court are not aware that even if a child lives with you, you still need the permission of the other parent with parental responsibility before you can take them out of the jurisdiction of the United Kingdom."
If they refuse to give you consent to take your child abroad, you will have to apply to the Family Court for a Specific Issue Order under Section 8 of the Children Act 1989, giving permission to do so. These applications can take quiet a while, so make sure you apply several months before you plan to go on holiday.
"The build up to many holidays have been spoilt by the other parent refusing to give consent at the last minute, causing distress and anxiety... A letter from a Solicitor in good time is usually enough to persuade the other parent to give their consent," Karen added.
However, the other parent may apply to the court to prevent the child travelling abroad. This may be because they don’t believe the holiday is in the best interests of the child, e.g. during school time. So in these situations, the concerned parent can apply to the Family Court for a Prohibited Steps Order, which prevents the proposed holiday from taking place.
One way of trying to balance the interests of both parents and to avoid any unexpected ‘I’m taking our child on holiday now, bye!’ situations, you should consult with the other parent at the start of each school year when the calendar is released, so that you can agree dates for both of you to travel with your child.
Karen explained: "It is highly unlikely that any Court would deny a holiday abroad to any parent who has a child living with them, unless the child is likely to be at risk for some reason."
Child Arrangements Order:
If a Child Arrangements Order (formerly known as a Residence Order) has been made by the Family Court, which states that the child shall live with a particular parent, then that parent can take the child out of England and Wales for up to four weeks at a time without the permission of the other parent. This depends on the condition that the holiday does not conflict with any time that a court order states would normally be spent with the other parent.
If the time away is due to be over 28 days, either authority from the Family Court or permission from everyone with parental responsibility for the child is required.
Making an application to the Family Court:
Making a court application is expensive and very time consuming. It can often damage relationships between the parents of the child. Remember, court proceedings should always be a last resort.
Whenever the Family Court is faced with an application regarding a child, the court’s priority will be the child’s welfare.
If you are planning to go on holiday with your child, you should provide the other parent with the following details:
• Accommodation address
• Telephone numbers
• Flight numbers
It is crucial to parents that they know where their child is going on holiday, in case of emergency.
Karen offered some words of advice: "It is always worthwhile ensuring that you have their permission and arrangements for securing a child’s passport before you book a holiday."
The first thing to remember is that if you’re struggling to agree with the other parent when you tell them you want to take your child on holiday, you should consult with a specialist family solicitor to discuss the best approach for progressing with this issue.