Find out your rights for taking your child abroad post-lockdown if you’re a separated parent.
With lockdown now beginning to ease, many families are hoping their summer holidays will still go ahead as planned.
Amidst the rapidly evolving advice around travel, it is easy to envisage divorced or separated parents disagreeing on the best measures to take in relation to their children and travelling abroad.
Further complicating the matter, parents may have different views about whether it is safe to take their child abroad even after travel restrictions are lifted and the impact that a potential quarantine might have on the arrangements when they return.
If you are unsure where you stand, here are some of the main legal guidelines to be aware of.
Your rights when planning to take your child abroad are the same now as they were before the coronavirus outbreak, and the legality of your situation depends on any court orders that may already be in place, and whether each parent has ‘Parental Responsibility’.
Parental Responsibility is a legal concept which includes the rights, duties and obligations a parent has to a child. Mothers automatically obtain parental responsibility when a child is born, but until 1 December 2003 unmarried fathers did not. Unmarried fathers whose children are born after this date also receive parental responsibility if his name is on the child’s birth certificate.
If both parents have parental responsibility and there are no court orders in place, neither can take the child out of the UK without the consent of the other. It is useful to have that consent in writing in case there is an issue when you leave the country and return. However, if one parent has a residence order or a child arrangements order stating the child lives with that individual, he or she can take the child abroad for 28 days without the written consent of the other parent.
Holidays in England and Wales
If you want to take your child out of England and Wales – for example to Scotland – you will need permission. However, if you would like to take them on holiday within England and Wales, you do not require permission unless there is a Court order in place stating that contact should take place at a certain time, or a certain number of times a week and the holiday will impact on this.
In any event, it is a good idea to inform the other parent of your intention to take the child on holiday, even if not abroad.
Planning in advance
You should try to agree the arrangements of taking your child abroad with their other parent well in advance to avoid misunderstandings, problems with contact, accusations of abduction and other applications to the Court. Both parents should always have the child’s best interest at front of mind when making any decisions, and if consent is unreasonably withheld, an application to the court may need to be made for permission.
When making a decision about whether a parent is permitted to take their child abroad, the Court will often require details stating where the child will be staying, the date of the departure and return and details of flights along with contact telephone numbers.
If there are suspicions that the child will not be returned, especially if the child is going to a non Hague Convention Country, then security will be necessary.
If you wish to take your child out of the UK and their other parent objects, it is then best to seek legal advice as soon as possible, ideally before arrangements are made.
You may decide to make an application for a specific issue order to seek the Court’s permission to travel. If appropriate and safe arrangements are made for travel and accommodation, then it is likely that the court would give permission.
However, if the other parent has good reason for concern, the arrangements are not appropriate or pose any risk to your child, or if there is evidence that the child would be taken abroad permanently, then the court is likely to refuse permission.
Objecting to an ex-partner taking your child abroad
If you genuinely fear your ex-partner is going to take your child abroad and not return with them, or if you have other grounds for concern, you can apply to the court for a prohibited steps order or specific issue order to stop your ex-partner taking your child abroad on holiday. Alternatively, you can oppose their application for permission to take the child on holiday.
If you are experiencing difficulties in reaching an agreement with your ex-partner about holiday arrangements for your children, it is important that you seek the advice of a specialist family lawyer in the first instance.
Not only will they will be able to look at your individual circumstances and provide further advice on how to reach an agreement directly, if all efforts have been exhausted, they can write to your ex-partner to agree arrangements on your behalf.
This will result in a formal arrangement being recorded in writing. If it is not possible to reach agreement through a solicitors, a referral can be made to an independent mediator whereupon endeavours can be made to reach agreement face to face in the presence of a third party professional.
Holiday arrangements for children in split families can be complicated at the best of times, let alone with all the current uncertainty. However, by understanding your legal rights as a parent and seeking external advice as necessary, you can ensure you reach the best possible outcome for both yourself and your child.
Lucinda Holliday is head of family & divorce at Blaser Mills Law.