Q&As to help separated parents enjoy the sun, sand and surf

When approaching holiday arrangements for the first time since you separated with your spouse or partner, the first thing to ascertain is whether…

What can and can't my Ex do regarding holiday arrangements?

When approaching holiday arrangements for the first time since you separated with your spouse or partner, the first thing to ascertain is whether you have parental responsibility for your children and also whether your Ex does.

If you have an informal arrangement for how your children spend their time, then you need the agreement of everyone with parental responsibility before taking your children out of the jurisdiction of England and Wales. Getting that agreement in writing could save delays at passport control, especially if you do not have the same surname as your children. This is the position that will apply in the majority of cases, and if it accords with your circumstances, then your Ex needs your agreement and would be wise to obtain it before booking an expensive trip.

If there is a court order in place that specifies the children 'live with' your Ex, then he/she will not need your agreement to take the children abroad, providing they are not planning to take them out of the country for more than 28 days. This is equally true if you have an older order confirming that they have a 'residence' or 'shared residence' order.

When should I consider opposing summer holiday plans?

There are many valid and powerful emotions surrounding children going on holiday with only one of their parents for the first time. Identifying anxieties triggered by an objective risk of harm to the children as opposed to those surrounding managing without them and whether they will end up having too good a time ahead of the holiday plans you have made, can be hard to separate out.

If the children have never been abroad before, or never stayed overnight with your Ex then perhaps a full week's holiday abroad is not the starting point for them.

If your Ex is not prepared to provide flight and accommodation details, reassurance that there will be a number on which you can get in contact is something to insist upon.

If your Ex is taking the children back to their home country, or a country where they have strong links and you feel that their ties to the UK are not strong and that they could easily move their life there then you might want to think about having a court order to manage holiday plans which build in safeguards that this is genuinely a holiday and that they will return afterwards.

Not returning the children at the agreed time would fall under the criminal offence of abduction so it not something to be undertaken lightly. With EU countries and also countries that are signatories to the Hague Convention there is a legal framework and high levels of co-operation for the return of abducted children. A list of Hague Convention signatories is available online. If your Ex is thinking of taking the children to a country that is not a signatory to the Hague Convention then this is definitely a situation in which you should be taking legal advice.

When shouldn't I allow my anxiety to get in the way of the children having a good time?

If the children regularly stay overnight in your Ex's care, you have full details of where they will be going and who else is going on the trip and the location is child appropriate (and takes into account any dietary or medical concerns of the children), it is difficult to see a judge agreeing with you that the holiday would not be in the children's best interests.

Even if your Ex is returning to their home country, if their main property asset is in the UK and their livelihood is based on their employment within the UK, then in the absence of specific threats that they may take the children and not return, a judge is likely to be robust about allowing the holiday but there would still be the opportunity to build safeguards into the order.

What can I do to help reassure the children's other parent?

If your main concern is the objections your Ex will raise to you taking the children abroad, then the best advice is to be thorough and meticulous in the information you are providing, ideally providing full details of the holiday unprompted. Answer any questions patiently and considerately, even if you feel that being reminded how many times to reapply the sun cream, or to take the epi pen are things you don’t need reminding about. Think of anything that would worry you in the reverse situation and aim to address that concern. Also highlight the aspects of the holiday that you feel the children will be particularly excited about and how these will benefit them.

It is likely you will need your Ex’s permission, so make sure you are not springing an idea on them at the last minute but a good number of months in advance. If your holiday is child centric and carefully planned a judge is likely to be sympathetic and grant your request. However, if you only asked for your Ex’s co-operation a month or so before the holiday it is unlikely that there will be time for the court to deal with your request and will instead by looking ahead to the next holiday period.

I am going away with the children immediately afterwards, what if the passports are not returned?

It is good practice for court orders to make provision for who looks after the passport and when it is returned to the other parent. However, if your arrangements to date have been amicable without the need of a court order, then there is a risk that the passport(s) will not be returned and an urgent court application will be required to seek possession of the same.

If you are at all concerned about this possibility then it would be prudent not to plan to travel the same day/next day after the children are returned to your care.

Lottie Tyler is an Associate Solicitor in the family law team
Lottie.Tyler@weightmans.com

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