School holidays are approaching and with that comes the hope and expectation of many families that they will be able to take a holiday; but arranging a holiday with your children post-separation isn’t always plain sailing. Legal Director, Angela Wipat, takes a look at issues which might arise in holidaying with your children after a break up, and offers some guidance on how to make it an enjoyable experience for everyone.
What is the legal position?
The legal position in Scotland is that no person may remove a child from the UK without the consent of any parent who holds and exercises parental rights and responsibilities in relation to that child. This means you cannot take your child on holiday out with the UK without first obtaining consent from the child’s other parent. Ideally, if permission is not already contained within a clause in any separation agreement, you should seek consent in writing.
Some countries require specific confirmation from the other parent that permission is given for the children to travel. For example, if travelling to South Africa, a parental consent letter is required from the other parent confirming they agree to the child travelling. Parents should check the guidance on the Foreign and Commonwealth Office website in advance to find out the particular requirements of their holiday destination and to allow plenty of time for preparation of any documents required.
We need to be mindful now too of the impact of COVID-19. The pandemic created a new layer of anxiety for parents where children moved from one home to another to spend time with the other parent. Almost certainly this anxiety will feature again if there are plans to travel abroad. Anticipate this concern which is perfectly valid and find out what you need to do to travel out of the UK and on to your proposed destination. Keep up to date with the impact of the pandemic in the country you plan to visit.
What can you do?
- Plan early. Be clear and up-front with your ex partner about your plans for holidaying with the children. Leaving things until the last minute is a recipe for disaster. Ask for their agreement to the trip. If agreement is refused, find out why and answer concerns if you can.
- Ensure any documents such as passports are handed over in good time.
- Be prepared to share information about where you are going together with dates/times of departure and arrival.
- Provide emergency contact information to the parent remaining at home.
- Organise the pick up and drop off arrangements well in advance. It will not assist anyone for either parent to be fractious or upset during this handover. Think of the children and the effect your behaviour will have on them.
- Do not involve the children in the exchange of information or making arrangements. It is unfair to children to burden them with such a responsibility and potentially unreliable.
It’s OK to be apprehensive... but it’s not just about you
A holiday should be an enjoyable experience for all and the extended time between the children and their other parent is important for nurturing their ongoing relationship. It may be the first time your children have been away from you for more than a night or two since they were born. It is natural to have concerns about your children being away from you. If you are worried, speak to your ex partner. Not knowing each other’s concerns and failing to communicate can lead to unintended arguments which will not make the prospect of the children going away any easier.
Communication may not always be easy between the adults so consider the benefits of using a process like mediation to deal with specific worries like holiday arrangements. A mediator can help you both find some common ground by looking at all the options available and hopefully you can both be reassured about the holiday arrangements that are to take place.
Family Abroad
You may feel that your ex partner taking the children abroad on holiday is not in the best interests of the children. This can often be a factor where one (or both) parent(s) have family abroad. You may be worried about the children not returning. Raise your concerns early and ensure they are dealt with satisfactorily before the holiday commences. It may be that specific undertakings can be given about the return of the children following the agreed holiday period. Sharing and having the details of flights and destinations will go a long way to make sure there is no reason for suspicion.
When All Else Fails - Specific Issue Orders?
If all else fails and your ex partner refuses to allow you to take the children on holiday, you can apply to the Court for a specific issue order. This is an order permitting you to take the children on this particular holiday and dispensing with the need for the other parent’s consent. A Court will consider each case on its own facts and circumstances and reach a decision based on what it considers to be in the best interests of the child.
Going to Court is expensive, time consuming and does nothing for fostering a good or civil relationship with the other parent. It is therefore always better to try to reach agreement directly and in good time ahead of your proposed holiday. If intervention is needed, give thought to using an alternative dispute resolution method like mediation which is ideally placed to manage specific problems that arise from time to time. The decision making remains with you both as parents but you have worked through the problem together to find a solution in a calm and constructive environment. The result will hopefully be an enjoyable holiday for the children with the other parent and a break for the parent at home. Surely a win-win situation?
Angela Wipat is an Accredited Family Law Specialist and Accredited Family Law Mediator in our specialist Family Law team. If you are looking for advice in relation to any issues raised in this article, please contact Angela on 01738 621212 or alternatively contact any member of our Family Law team.
