Sun, Sea and Suspicious Parties - Children Holiday Disputes

Holiday read

“It had been a long and difficult year. 

Separating from her husband was never going to be easy, but the divorce was over now. Life is moving on. She is looking forward to a much-needed holiday in the sun with her beautiful children. 

The bags are packed. 

She conducts a final check of the essentials. Passports, suncream and swimming costumes are all safely stowed and ready for the journey. 

Her phone lights up. What does he want now?

“Hey. It’s me. With all that has happened, I’ve had second thoughts. You can’t take our children away on holiday”

Her stomach sinks. Her head spins. 

But he had already said he was fine with it? How can he do this? He knows exactly where she is going because it is the same place they would go for endless summer holidays as a family. The children love it. They even had their honeymoon there! What is his problem!

She dials the number she has called too many times over the past 12 months. She knows the digits off by heart. The person you hope never to need, yet perhaps the only person who can sort this mess. She needs …

The Family Lawyer”

Common problem

This could be the opening of a holiday read. 

The type of book you find lost and lonely in a hotel library, ragged corners and pages tanned by hours in the sun with countless tourists over the years. Ice cream smudges and suncream smears. 

You wouldn’t want to be seen reading such a book on a train into the City of course – not enough intellectual rigour for colleagues and commuters - but for poolside escapism with a cocktail in hand, literary perfection. 

But this isn’t a New York Times bestseller or even a Richard and Judy Book Club recommendation. 

For very many separated parents up and down the country, this is the reality of their holiday arrangements. It is commonplace: frustrating and painful. 

What should they do?

The law

A child cannot be taken out of England and Wales without permission from all of those with parental responsibility for the child.

A child’s mother has automatic parental responsibility. 

A child’s father has parental responsibility if: (i) they were married to the mother when the child was born; or (ii) they are named as the child’s father on their birth certificate; or (iii) a parental responsibility agreement has been entered into with the mother; or (iv) a court makes an order that they have parental responsibility.

There may be other people (such as a step-parent) who also have parental responsibility for a child. 

The only circumstance in which permission to travel is not required is where a child ‘lives with’ a parent pursuant to a Child Arrangements Order which means that parent can take the child out of the jurisdiction for a period of less than one month without needing permission.

Permission must exist at the time the child leaves the jurisdiction. You cannot rely on the other parent having given permission in the past if it was subsequently withdrawn. 

If a person takes a child out of England and Wales without the necessary permission it would be a wrongful removal. This is a highly serious matter. A court application could be made for the child to be immediately returned and there could be far-reaching consequences in any future proceedings. 

A criminal offence may also have been committed. 

Planning

It is important to seek the other parent’s consent as far in advance of the holiday as possible. 

The other parent should be provided with travel and accommodation details along with proposals for how they might contact the child during their time away, if appropriate. 

If necessary, the parent who wishes to travel with the child should explain how the child will enjoy the holiday and why it is in their interests. 

Any concerns the other parent might have about the child not being returned should be addressed at the outset. Please see below for assurances which might be considered in this regard. 

A trip to a location the other parent is familiar with might well be a good way forward. 

The aim is to reassure the other parent. The parent who wishes to travel should give them no grounds to reasonably oppose the holiday. 

No permission – out of court resolution

If the other parent refuses or withdraws permission, the parent who wishes to travel should first explore the possibility of resolving the issue out of court. 

Mediation may be a good forum in which to seek agreement. 

Family law mediators are trained to facilitate discussions between parties so possible solutions might be identified and a resolution reached. 

For example, might permission be given if the plan was changed? Could it be agreed that the child will speak to the other parent once or twice during the week away? Might the holiday be shortened or travel arrangements changed to better suit the needs of the child? Would a different location be agreeable? Could the other parent be involved in the holiday at all?

More than one session of mediation is usually needed so the process should be started as soon as possible after a problem arises. 

No permission – court proceedings

If an agreement cannot be reached, the court can make a Specific Issue Order giving a parent permission to take the child out of the jurisdiction for a holiday.

A Specific Issue Order would mean there is no need for the other parent to give their permission.

Unreasonably withholding permission could be brought to the attention of the court in future applications as necessary. 

A Specific Issue Order may be necessary when the other parent has withdrawn consent at the last minute or is causing mischief in terms of giving consent, perhaps by being ambiguous in their communications.

Full details of the holiday including dates, travel plans and arrangements for the other parent to be in contact with the child whilst away will likely be recorded in the Specific Issue Order.  This provides clarity and certainty for all concerned.

In advance of any such application, the person making the application must complete a Mediation Information and Assessment Meeting (MIAM). This is a short meeting with an authorised family law mediator who will provide information about the mediation process. 

A person does not need to undertake a MIAM if they have already been in mediation which was unsuccessful. 

There are other exceptions to the MIAM requirement. These include urgency which may be relevant to an application for a holiday which is fast approaching.

The application for a Specific Issue Order should be made on a Form C100 unless there are existing proceedings in which case a Form C2 must be used. 

The other parent may wish to guard against a wrongful removal by asking for the child’s passports to be surrendered to a solicitor or by making a court application for a Prohibited Steps Order until further court determination. 

The court’s paramount consideration is the child’s welfare. 

Particular regard will be given to the ascertainable wishes and feelings of the child in light of their age and understanding, physical and emotional needs, and any characteristics which the court considers to be relevant. 

The parent who wishes to travel would need to persuade a court the proposed holiday is in the child’s bests interests. 

A clear and coherent plan by way of arrangements for travel and accommodation will be of vital importance. 

Any concerns the other parent may have that the child will not be returned to England will need to be addressed head on. Undertakings may be offered and/or a bond could be paid to be surrendered in the event of non-return. 

The travel destination will be relevant. 

Some countries have a better record of returning unlawfully retained children than other countries. The court will be more comfortable making a Specific Issue Order granting permission for removal to a country with a proven track record of returning children.

One crucial challenge is timing. 

Courts can move slowly, even for timely and urgent applications. A person who may need to make an application must allow enough time before the proposed holiday to make the application if they are concerned permission will not be forthcoming. 

Thought should be given to any orders the court may make to prevent further incidents in the future. 

Conclusion

This is a common and difficult issue, particularly at this time of year. 

It is important that, if permission for a holiday is likely to be problematic, legal advice is taken as soon as possible. 

A parent who wishes to travel should ensure there are written communications about the holiday arrangements so there is a clear record of what was discussed and agreed.

Leaving it too late could put the holiday at risk. 

“As the plane rose into the early morning sky, she looked over at her children and smiled. The holiday was underway and for the first time in months she felt at peace. 

She silently raised her glass and toasted The Family Lawyer”