We’re all going on a summer holiday…

If all the lovely sunshine at the moment has got you thinking ahead to the summer holidays and perhaps booking a trip for you and your children, what do you need to be thinking about if you are separated from your spouse or partner?

What is Parental Responsibility (PR) and how does it impact holiday arrangements?

Parental Responsibility is defined in the Children Act 1989 as the “rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

A mother automatically has Parental Responsibility in respect of the child.  A father who is married to the mother at the time of the child’s birth will automatically have Parental Responsibility. Unmarried fathers will have Parental Responsibility in respect of the child if their name is on the child’s birth certificate after 1 December 2003.

To travel outside of the jurisdiction of England and Wales with your children, you must have the consent of all holders of parental responsibility. The exception to this is if you have a ‘lives with’ order, which means you can travel for up to 28 days without consent of the other parent or an order from the court permitting the holiday to take place (known as a specific issue order). Beware though, if the order also includes ‘spends time with’ you cannot encroach on the other parents time without agreement.

As a lone parent traveller you’ll probably find yourself with some questions from the UK Border Agency at the airport. They are alive to issues of abduction and don’t hesitate to enquire into solo parent travellers. It’s always advisable to either have a sealed copy of your Child Arrangement Order or the consent/permission to travel given by the other parent. The latter isn’t strictly required, but well worth having to avoid difficulties.

What if you travel without consent?

Absent an order of the court permitting you travel outside the jurisdiction with a minor child (16 years or under) or permission of others with PR this would constitute a wrongful removal and you would be committing a criminal offence, namely abduction.

Anyone with parental responsibility could seek an order for the child’s immediate return. The same would apply if the trip was extended beyond the time originally agreed, this is called a wrongful retention.

Can my ex withhold consent to a proposed holiday?

Consent can not be unreasonably withheld.

What can I do if we can’t agree?

There are various options, which will largely depend on the time you have available before the trip is due to take place.  Often time is of the essence. It’s normally a discrete issue and should be readily resolved through one of the following methods:

  • Discussions between you or via your solicitors
  • Mediation
  • By making an application to the court for a specific issue order
  • Referring the matter to Arbitration

What are our Top Tips?

Plan early

Get written agreement from your spouse or ex partner

Share information

Dates, destination and flights if it is safe for you to do so

Comply with existing arrangements

Ensure that proposed plans do not encroach on a ‘spend time with’ order and plan accordingly

Indirect contact

Consider indirect contact arrangements, such as video calls whilst you are away, bearing in mind time zones

Have the right documents with you

If you are separated and have a Child Arrangements Order (‘lives with’) have a sealed copy i.e. one stamped by the court seal with you when you travel

If you are not married / have a different surname to your child / do not have a ‘lives with’ order ensure you have written consent or appropriate authority to travel and take copies of birth certificates / decree absolute / final order, as necessary

Do your homework

Always check the requirements of the destination country https://www.gov.uk/foreign-travel-advice as the requirements do differ between jurisdictions

Time could be of the essence if the trip is imminent or in the coming weeks/months so do seek advice if you find yourself planning a holiday and these issues apply to you.  If your intended trip is a proposed temporary or permanent relocation to another jurisdiction then it is important you get advice early and well in advance of the timing of any proposed move.  More on that to follow.

We’re here to help. Contact us here or enquiries@ne-familylaw.co.uk.