Fun In The Sun?
The school summer holidays are fast approaching and separated parents across the country are looking forward to a holiday in the sunshine with their children. But, holiday planning with children after separation may not be straightforward. Before you go rushing off to the airport or indeed booking a holiday you need to consider a very important question:
Do you need the permission of the other parent to take your child on holiday abroad?
The answer is yes if that parent has parental responsibilities and rights. This can come as a shock, particularly if the other parent doesn’t play a significant role in your child’s life. It could create a real issue if you have your summer holiday already booked and planned.
The Legislation
The Children (Scotland) Act 1995 says no person can remove a child habitually resident in Scotland from the United Kingdom without the consent of both parents who have parental responsibilities and rights.
There has been a dramatic increase in the number of parents refusing to return to the UK with their child after a holiday abroad. The legislation seeks to prevent child abduction, and stop the remaining parent having to fight to have a child returned to the UK.
In addition, the Child Abduction Act 1984 makes it a criminal offence for anyone to remove a child from the United Kingdom without the consent of a person who has parental responsibilities and rights.
Tip 1: Plan Your Holiday in Advance
Be organised and plan your holiday well in advance. Negotiate the necessary consent of the other parent before booking the holiday.
If you are engaged in a court dispute and have difficulty co-operating, the issue of holidays can be a sensitive one. Difficulties can arise if you aren’t the one who holds the passport. If the other parent does not agree to a foreign holiday and refuses to provide the passport, the Sheriff Court can be asked to grant an order known as a Specific Issue Order. Hearings for such an order take time to arrange. Early planning is essential if such an Order is required.
Tip 2: Record Consent to a Holiday
A Separation Agreement or Minute of Agreement is the document that usually records what you and your ex-partner have agreed on financial and other matters. It may include the arrangements for the care of your children. It is possible to include a clause addressing consent to any holiday outwith the United Kingdom for a specified period.
If this isn’t addressed in the Agreement, make sure you get consent in writing to avoid any doubt.
Tip 3: Mediation
If the other parent refuses consent, mediation could help identify and resolve issues. Mediation is a more amicable process than contested court proceedings.
You might also be interested in reading: How Can I Resolve My Dispute?
Tip 4: Court Is Your Last Resort
Where the other parent is refusing consent unreasonably and negotiations have been exhausted, your last resort is to apply to the court for a Specific Issue Order. If you take this route, you must be prepared to provide as much information as possible to the court about the holiday. The welfare of your child will be at the forefront of the court’s mind in determining if it is in their best interests to go on holiday. The court will apply a balancing exercise including the opposing parent’s concerns. The court will consider the length of the holiday and the proposed location, as well as the risk of your child not being returned.
Depending on the age and maturity of your child, the court may also give them the opportunity to express their view.
Court proceedings can be expensive. Factors that might affect the court’s adjudication on expenses include: consent being unreasonably withheld, or the holiday planned not being within the scope of what would be sensible.
Contact us
If you need advice or support with negotiating consent for a holiday, applying for a Specific Issue Order, or with any other issues related to separation, our family separation lawyers in Edinburgh and Glasgow can help. Contact us to discuss your situation.