Holiday travel to a foreign destination with a child/children
With the summer holiday season fast approaching, many parents are starting to think about foreign travel destinations and where they are going to take their children on holiday this year. For many parents, once the foreign travel destination is selected, booking the holiday is relatively straightforward and the family can start to look forward to their time away.
However, matters can sometimes be more complicated when booking foreign travel for children of separated or divorced couples and parents can often get into a legal dispute regarding proposed plans for a child’s holiday travel.
Why is this?
Under the Children Act 1989, everyone person with parental responsibility for a child has to give their consent to the child being removed from the jurisdiction either permanently i.e. to live abroad or temporarily i.e. to go on a family holiday. This consent usually has to be in writing and some countries even have a specific consent form that must be signed by all person’s with parental responsibility, to clearly show their consent to the child’s removal from the jurisdiction.
An exception to this rule is where there is a Child Arrangements Order in place either authorising the child’s removal from the jurisdiction (usually in the form of a Specific Issue Order) or a “live with” or “residence” style Order has been made which allows the person with whom the child lives to remove them from the jurisdiction for up to 4 weeks without further consent from those with parental responsibility.
What should you do if your ex-partner refuses their consent for you to take the child out of the jurisdiction?
If your ex-partner refuses to give their consent, you must first try to reach an agreement with them via mediation (if time allows) or through negotiations in writing. A solicitor can be appointed to write to your ex-partner about the proposed arrangements and to try and obtain the necessary consent. If you attempt these options, in the unfortunate event of you needing to make an Application to Court, you will then have evidence of your attempts to try and settle matters amicably.
If an Application to Court is made, it will then be up to the Judge to decide whether it is in the child’s best interest to be removed from the jurisdiction and whether an Order authorising this removal should be made. The paramount consideration of the Court will be the welfare of the child in question and the Judge will look at the welfare principles set out in the legislation.
What should you do if your ex-partner threatens to remove the child from the jurisdiction against your wishes and without your consent?
If your ex-partner threatens to remove the child without your consent and you feel there is a risk to the child of unlawful removal, you should seek to apply for a Prohibited Steps Order and ask the Court to make an Order preventing the child’s removal from the jurisdiction. Such Orders are often applied for on an emergency basis, especially when there is no time to try and mediation or negotiate the issue.
Could a Parenting Agreement help?
In order to limit the need for on going consent to foreign travel, parties could consider entering into a Parental Agreement setting out the holiday arrangements for the children and stipulating their consent to future holidays abroad. Within any agreement, they could agree to supply the non-travelling party with details of flight booking, accommodation details and emergency contact numbers in order to provide clarity on the arrangements.
Unfortunately, a Parental Agreement is not legally binding or enforceable at Court and it does not therefore prevent a party from withdrawing their consent at a later stage. However, it can be a useful tool in reducing disputes between parties and can also act as evidence of the parties intentions if Court proceedings raise in the future.
If you are experiencing any difficulties with your ex-partner in relation to holiday plans and need expert advice, please call Lorna Barry or Kirsty Bowers.