Do I need permission to take my children on holiday during a divorce?

Many parents are unaware it is a criminal offence to take their child abroad if they do not have the permission of every person that has parental responsibility. This is more likely to be an issue where a couple has separated.

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When is consent needed?

Separated couples must be aware that they may not be able to take their child abroad without the other parent’s consent.

Those with parental responsibility

The first thing that has to be determined is who has parental responsibility for the child. The biological mother automatically has parental responsibility, but the father will only have it in certain situations, such as if he was married to the mother at any time from the birth or was named on the birth certificate.

Where both parents have parental responsibility in relation to a child and there is not a Child Arrangement Order in place, then consent is required from the other parent before the child is taken abroad. Written evidence of the consent should be taken on the holiday, together with a copy of the birth certificate to prove parentage.

Child Arrangement Order

Where there is a Child Arrangement Order in place, a parent named as someone the child lives with (and not just spends time with) can take the child abroad for up to 28 days without needing the consent of the other parent. If the time abroad is for longer than this, then consent or a court order will be required.

However, where the parent is only named in the order as someone that the child spends time with, they must get the consent of the other parent or the court to travel outside of the UK with the child.

UK holidays

It is not necessary to obtain consent from the other parent to take a child on holiday or to another location (for example, to visit family) if this is within England and Wales. However, this cannot impact on the arrangements agreed between the parents as to when each will see the children, and if it does, an agreement needs to be reached in relation to altering this.

What if the other parent does not consent?

If the other parent does not consent to the holiday, in the first instance parents should try to agree the issue without court intervention. This is often done with the assistance of a trained mediator who will help to structure the discussions the parents have.

Applications to court should be a last resort as the process of litigation is time consuming, expensive and stressful for all concerned. It also does not have a guarantee that you will achieve the result you want. However, mediation and other forms of dispute resolution are not always suitable, particularly if the other parent will not agree to the holiday.

Before an application is made, the prospective applicant needs to attend a Mediation Information and Assessment Meeting (MIAM) unless a MIAM exemption or a mediator’s exemption applies. Prospective respondents are expected to attend a MIAM either with the prospective applicant or separately.

Following this, the applicant can apply to the court for a Specific Issue Order (“SIO”) that the court give permission for the holiday.

What does the court consider when making a Specific Issue Order?

The court will consider welfare checklist as set out in the Children Act 1989, which includes the following factors:

• The ascertainable wishes and feelings of the child concerned (taking into account their age and understanding)
• The child’s physical, emotional and educational needs
• The likely effect on the child of any change in his circumstances
• The child’s age, sex, background and any of their characteristics which the court considers relevant
• Any harm which the child has suffered or is at risk of suffering;
• How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
• The range of powers available to the court under this Act in the proceedings in question.

Can I stop the other parent from taking my child abroad?

If a parent is concerned about the other parent taking the child abroad, they can also apply to the court for a Prohibited Steps Order that prevents this from happening without the consent of the other parent. The court can also be asked to remove the child’s passport to prevent them being able to travel.