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Green light to holidays but you may need to apply the brake!

As international travel resumes, we provide some top tips for separated parents planning to take children abroad.

The Government has now disclosed details of its “traffic light” system for foreign travel and revealed which countries would be included in the “green list”. This has prompted a surge in holiday bookings, and with half-term on the horizon many parents have rushed to secure a long-anticipated break. 

However, before going to the expense of booking flights and hotels, separated parents ought to consider not only COVID restrictions and the current traffic light system, but also their legal position as a separated parent. 

Separated parents often assume, particularly if they are the primary carer for their child, that they are under no obligation to notify the other parent of their holiday plans. Potentially, however, they could find themselves on the wrong side of child abduction laws if they take their child abroad without the other parent’s knowledge or consent.

It is therefore a good idea to consult the other parent before committing to any travel arrangements or paying a hefty deposit. Set out below are some important considerations which we hope will assist those parents planning a break somewhere slightly more exotic and exciting than their back garden this year.

Who has parental responsibility?

The starting point should be to check whether the other parent has parental responsibility for the child. Mothers are automatically granted parental responsibility on birth, whereas the father of the child will have parental responsibility if he was married to the mother or was entered as the father on the child’s birth certificate.

Alternatively, it may be that the father acquired parental responsibility at a later stage, either by entering into a formal agreement with the mother or by obtaining a formal court order. 

If the father doesn’t have parental responsibility, can the mother take the children on holiday without the father’s consent? 

Assuming there is no court order in place regulating the arrangements for the child, then the mother should be able to take the child out of the jurisdiction without the father’s consent. 

That being said, it remains good practice to consult the father and make him aware of the proposed trip, particularly if he maintains regular contact with the child.   

Top tip: In addition, if the child bears a different surname to the parent taking them on the holiday, it is often a good idea to travel with a certified copy of the birth certificate in order to avoid any difficulties or awkward questions at passport control.

Top tip: Some countries have additional travel requirements or border checks for children, so do check in advance of travel.

What if both parents have parental responsibility for the child?

If both parents have parental responsibility, and again there is no court order in place, then neither parent can take the child outside of the UK without the written consent of the other parent (and any other third party with parental responsibility). 

What if one parent has a residence order or a “live with” child arrangements order?

Residence orders and “live with” orders are essentially the same thing. They are simply an order setting out who a child should live with. Prior to 2014, these orders were known as residence orders, but thereafter they were referred to as “live with” orders. 

If one parent has a court order stating that the child lives with them, they are permitted to take the child out of the jurisdiction for up to 28 days without the consent of the other parent with parental responsibility, provided that it does not interrupt the other parent’s time with the child.

Top tip: It is advisable to carry a copy of the relevant order alongside the child’s passport and any travel documents. 

Top tip: It is important to consider whether the proposed trip will impact on the terms of the court order and any arrangements for the other parent to spend time with the child. If so, then it may be wise to offer to make up any lost contact before or after the holiday with a view to securing their written consent.

What if the other parent unreasonably withholds their consent to the holiday? 

If the other parent refuses to consent to the trip, an option may be to apply to the court for a specific issue order, for an order that the parent can take the child abroad. Similarly, it is open to the parent who opposes the holiday to make a court application, although they would apply for a prohibited steps order to stop the trip, rather than a specific issue order.

Alternatively, mediation may be a cost-effective option; however, whether mediation is feasible will largely depend on how far ahead the holiday is booked. If time is of the essence, it may become necessary to issue an urgent court application, particularly if the other parent has possession of the passport and is refusing to make it available in advance of the trip. 

What will the court take into account when considering whether to grant a parent permission to take a child on holiday?

The court will consider all relevant circumstances including the destination, the reason for travel, the length of stay and whether is a risk that the parent may not return with the child at the end of the holiday. Ultimately the child’s welfare is the court’s paramount consideration, and the court will aim to arrive at a decision which is in the child’s best interests.

At this particular stage of the lockdown road map, judges are likely to consider whether a chosen destination is on the Government’s green list. If not, a judge may be reluctant to grant permission if a prolonged period of quarantine would result in the child being absent from school, or impact on the child’s ability to spend time with the other parent on their return. 

A further concern may be the risk of the child contracting the virus and passing it on to family members upon their return. This is particularly so where the child in question lives with a vulnerable relative. The court may therefore be keen to consider rates of infection in the relevant country.

Some additional tips

To avoid costly court proceedings and unnecessary upset we would recommend the following further tips:

  1. Make contact with the other parent at an early stage and provide them with details of your proposed holiday. Acknowledge and discuss any concerns they may have and try to alleviate them.
  2. If your proposed holiday would impact on their time with the child, offer them some alternative contact.
  3. Before booking the holiday, ask the other parent to confirm in writing that they have no objections to the proposed trip.
  4. If they have the child’s passport, agree arrangements for you to collect it as soon as possible and when to return it.
  5. Once you have booked the holiday provide the other parent with full details of the holiday including the flight times/numbers, the address of the hotel/villa and emergency contact numbers.
  6. If agreement cannot be reached, it is advisable to seek legal advice sooner rather than later, with a view to resolving issues before the planned trip.

Contact our expert child law solicitors for further guidance on planning a holiday abroad with children.

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