Summer Holidays - Trouble Free?
- AuthorMary McEvoy
With children’s school summer holidays due to start imminently we are experiencing a lot of concern from separating parents about whether they can take their children abroad. We are acting in several cases where holidays were booked months ago but one parent is now objecting to that holiday being taken. What is the legal position?
Both parents will have parental responsibility where:
- parents are married to each other; or
- the father’s name was recorded on the birth certificate after 1 December 2003; or
- there is a Parental Responsibility Agreement in place.
There are other circumstances in which PR can be obtained.
Is it an offence for the parent of a child under the age of 16 to take that child out of the United Kingdom without appropriate consent?
The parent planning a holiday must obtain the appropriate consent. This must be obtained from the child’s mother, or from the child’s father if the father has Parental Responsibility for the child. In certain family situations there may be other people whose consent will be required.
There are exceptions to this the most significant being that the parent who wishes to take the child abroad is a person named in a Child Arrangements Order (CAO) as a person with whom the child is to live and he or she takes or sends the child out of the United Kingdom for a period of less than 28 days.
What does this mean?
In practice this means the following:- unless there is a CAO in place a parent may veto the holiday plans. Most of the parents we talk to do not have a CAO in place so they cannot take their child abroad or send them abroad for a holiday without the other parent’s consent.
Child Arrangements Orders were previously called Residence Orders. The trend in the Courts for many years has been to make no orders in respect of children and therefore most parents do not have orders recording the residence arrangements for their children even if the parents have lived apart for many years.
In practice therefore many of the parents to whom we are talking do not have a Residence Order or a CAO in place. Accordingly they cannot take advantage of the freedom to book a holiday and take their children on holiday without first getting permission from the other parent and may commit an offence by taking the child on holiday.
A person does not commit an offence under the Child Abduction Act 1984 by taking the child out of the jurisdiction without the consent of an appropriate person if:
a) He or she does it in the belief that the other person:-
i. Has consented; or
ii. Would consent if he or she was aware of all the relevant circumstances; or
b) He has taken all reasonable steps to communicate with the other person but has been unable to communicate with him or her; or
c) The other person has unreasonably refused to consent.
Is there any way around this?
Obviously one way around the difficulty is to ensure you have consulted the other parent well in advance of the holiday and have shared as much information as possible. However that is often not sufficient as the other parent may still withhold their consent. Consider whether the provision of the Child Abduction Act 1984, listed above, apply. For example has the other parent unreasonably refused to consent.
What can I do if permission is refused?
These problems often become evident very close to the date of the holiday. What should you do if you find yourself in that position? Firstly ensure the other parent has as much information as possible about your travel plans including copies of the tickets. Some parents will ask for a lot of detail about the place of the holiday, who will be there and contact details. Whilst it can be galling to have one’s parenting implicitly questioned in this way, it is advisable to provide that information. It is also advisable to provide a reliable contact arrangement so that the other parent may make contact with the children or their carers whist they are away if need be.
If that fails to satisfy the objecting parent then one’s only option may be to make an emergency application to Court for a Specific Issue Order. The Court will need an explanation as to why the couple have come to Court and will want to be satisfied about the travel arrangements.
Start your discussions in good time – it is likely to be difficult to get adequate appointments at Court close to the date of proposed holidays.
If you need advice about these matters please give us a call.