As the summer months approach us, many begin dreaming of taking a break from reality and jetting off abroad with the children for a holiday. However, if you are a separated parent you need to consider carefully whether you are legally entitled to carry out your plans.
1. There is a Residence Order or ‘lives with’ Child Arrangements Order in place
If there is a Residence Order or Child Arrangements Order in place, ordering that your children ‘live with’ you (formerly known as a Residence Order) then you are able to take your children abroad on holiday for up to 28 days. The order must stipulate that the children are to ‘live with’ or ‘reside’ with you after the words “it is ordered”. If you do have an Order of this nature and are travelling abroad with the children, then it is still courteous to inform the other parent of your intentions. The only way you would be unable to travel abroad on holiday with the children when there is a ‘lives with’ Order in place, would be if there was also a Prohibited Steps Order in place preventing you from doing so.
2. There is a Contact Order or ‘spends time with’ Child Arrangements Order in place
If the Child Arrangements Order does not legally record that the children are to ‘live with’ you as explained above, or you are the parent that ‘spends time with’ the children (previously known as a Contact Order) then you must obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.
3. There is no Court Order in place in relation to the children
Whether you are the children’s primary carer or not, you would need to obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.
4. Who shares Parental Responsibility?
A child’s mother will always have Parental Responsibility (unless a public law order has been made stipulating otherwise). A child’s father will share parental responsibility if he was married to the mother, he is named on the child’s birth certificate (only applicable to births registered after 01.12.2003), he and the mother have entered into a Parental Responsibility Agreement, or the Court has made a Parental Responsibility Order in the father’s favour. Other third parties, such as step parents, guardians or same sex parents may also share Parental Responsibility, by virtue of a Parental Responsibility Agreement or Parental Responsibility Order. A third party could also acquire Parental Responsibility if they have a Residence Order or ‘lives with’ order in their favour.
5. What happens if I cannot obtain the necessary consent?
For the avoidance of doubt, it is always recommended that consent from the necessary third parties is obtained in writing before a holiday is taken. If consent is not given or refused, then it would be necessary for you to make an application to the Court for a Specific Issue Order before your intended holiday. The Court are able to make an Order permitting a foreign holiday in the absence of consent from the necessary third parties. If the other parent or person with Parental Responsibility wants to prevent a foreign trip for a specific reason, then they could apply to the Court for a Prohibited Steps Order. If you travel abroad with the children without the appropriate consent or Order of the Court, then you could potentially be prosecuted for child abduction.
If you are unsure whether you are acting appropriately, or wish to receive further advice or assistance in this regard, then please do not hesitate to contact our Family Department.
Kerri Westlake
Graduate Legal Executive
