The school summer holidays are fast approaching and many parents will be booking their summer holiday to enjoy whilst their children are off school. For a separated parent, the thought of their ex-partner taking their children abroad can be extremely difficult and they may feel incredibly anxious, especially if it is the first holiday as a separated family.
Many parents may be fearful of how their children will cope without them for a prolonged period of time or worry about whether or not their ex-partner will be able to manage the care of the children whilst on holiday, should an emergency arise. Others may be concerned about whether or not their children will be returned at the conclusion of the holiday, especially if England is not their ex-partner’s country of origin.
To put your mind at ease there are precautions you can consider and arrangements you can put in place before the holidays start.
Advice for the parent wishing to take the children on holiday abroad
If the child concerned is under the age of 16, you will need permission from the other parent with Parental Responsibility (or if more people are involved in the care of your child, all people who share Parental Responsibility) before you can take the child out of the country. It is best to approach the idea amicably with your ex-partner and have full details of travel and accommodation arrangements to hand. This will offer reassurance to the other parent and no doubt help keep the situation amicable.
As well as gaining permission, it is important that arrangements are made for the children’s passports to be handed over in plenty of time to avoid any last minute stresses or the need to make an urgent application to the court. It would also be sensible to discuss arrangements for the children to communicate with your ex-partner whilst they are abroad whether this be by email, telephone, Facetime or Skype.
We would always suggest that you get the consent of your ex-partner in the form of a signed letter which can be carried with you in your hand luggage to show to the border or port officials that you have consent, if this becomes necessary. Questions may be asked particularly when you have a different surname to your child.
What if there are court orders in place?
If you have a Child Arrangements Order or Residence Order which requires your child to live with you, you can take your child out of the country for up to 28 days without your ex-partner’s consent. The only exception to this is if there is a Prohibited Steps Order in place which prevents you from removing the child from the jurisdiction. You must be aware that removal of a child from the country without the appropriate consent or permission of the court may amount to child abduction which is a criminal offence.
Again, we would suggest that any documentation regarding a court order is carried in your hand luggage in case of questions at border/port control.
If your ex-partner refuses to give their consent to a holiday abroad, you may need to make an application to the court. Before making a court application, it is a legal requirement for you to attempt mediation unless there is an element of urgency or other exemptions to mediation apply. The court will give permission for the child to be taken on holiday if it can be proven that such a holiday would be in the child’s best interests. In reaching its decision the court considers the welfare checklist.
Advice for the parent whose permission is required
Although the idea of your child spending a prolonged period of time away from you may cause you extreme anxiety it is important to take a step back and consider your options. Your initial reaction may be to try to stop the trip but it is important to put your child’s interests before your own. Consider how you believe your child would react to the idea of going on the holiday if he or she was made aware of it.
Before giving or withholding your consent, it may be helpful for you to list any concerns that you have and if possible, discuss these with your ex-partner, solicitor or mediator. It can then be determined whether your concerns can be alleviated by putting in place certain arrangements that would reassure you whilst your child is out of the country.
If after taking time to consider your options you believe that the proposed holiday would not be in your child’s best interests, you may wish to apply to the court for a Prohibited Steps Order to prevent your ex-partner from taking your child out of the country. The court will consider what is in the child’s best interests by taking into account the welfare checklist.
When deciding whether to give permission the court will consider the country your ex-partner is intending to visit, their plans whilst there and safeguards that can be put in place in the event the country is not a signatory to international conventions dealing with the return of abducted children.
How have the court handled previous cases?
No two families are ever the same, so no two family law cases are the same however, it can be useful to see how the court have handled previous cases. Here are some examples:
Cases where the court have refused permission:
Re L & B: The Judge refused the Father’s application in respect of temporary removal of the children to Algeria (a non-convention country) and another European destination. In this case, the Mother alleged it was the Father’s intention to flee to Algeria and would not return the children to the UK. The court ruled that there was a risk of abduction and the advantages of the children visiting Algeria did not outweigh the risks to their welfare.
Cases where the court have granted permission with conditions:
Re M & K: The judge decided that it was in the children’s best interests to be removed from the jurisdiction to go to Malaysia on a temporary basis for a family wedding. Although the risk of abduction was low, the consequence of a breach was significant and to that end the Mother was to lodge a surety of £5,000 with the court to be made available to the Father for his legal costs should she fail to return.
Re H: A Mother’s application to take her child to Turkey. In this case, both parents were originally from Iran. The Father objected the application as he thought the Mother may flee across the border to Iran with the child. Turkey is a signatory of the Hague Convention and in this case the Mother was able to offer safeguards to ensure her and the child’s return to this country. These included swearing an undertaking to return, and lodging important documents (both her and the child’s birth certificates) with her solicitors whilst she was abroad thereby giving an incentive to return. On this basis, she was granted permission to take the child to Turkey for a two week holiday.
For further advice on summer holidays as a separated parent or any other family law matter, please contact Claire Porter in our Family Law team on 01244 305926.