Separated Families and Going Abroad: can I take my children on holiday?

It is always hoped that separated parents can work together to co-parent their children amicably and without any substantial issues. However, even the most constructive parental relationships can face disagreements.

One common issue that we often see is holidays. When one parent wishes to take their child or children on holiday, and the other parent does not agree, it is helpful to know what you can do to resolve the situation. As lawyers, it is a question we are often asked: what are my “rights” to take my children overseas?

It is important to first establish who has parental responsibility for the child or children. A biological mother will automatically have Parental Responsibility (PR). If the father is married to the mother when the child is born, he automatically obtains PR, and likewise if he marries the mother after the child is born, he will acquire PR then.

If the mother and father never marry, the father will still have PR if the child is born after 1^st December 2003 and he is named on the birth certificate. If he is not, then he can acquire PR by agreement with the mother, through a PR Order of the Court or a Child Arrangement Order.

Adoptive parents, or parents who have children via surrogacy, can also acquire PR in different ways.  It does not matter how you obtain PR, it applies the same to anyone who has it, including same sex couples. PR is not impacted by divorce or separation.

Where there are no orders in place, the consent of everyone with PR is necessary to take the child or children abroad. If consent is not provided, it would be considered abduction. This is a criminal offence. If the mother is the only person with PR, then she can take the child or children on holiday as she wishes.

If there is a Child Arrangements Order in place, then this may change who is able to take the child or children abroad. Any person who has a “live with” order – i.e. they have an order stating the child or children live with them – can take the child or children abroad for up to 28 days without the other parent’s permission.

However, parents are always encouraged to discuss and provide details of holidays to ensure an amicable and joint approach to the child or children’s upbringing. A Contact Order does not provide that person with the same ability.

In the event of a dispute arising, parents are encouraged to try to resolve the issue without the intervention of the Court. The Courts do not like to get involved unless it is necessary, as proceedings can prove damaging to the parental relationship. Parents will be encouraged to attend mediation or consider other Alternative Dispute Resolution options before issuing proceedings.

If Court proceeding do become necessary, the application depends on the dispute. If you are not legally able to take your child or children abroad without the other parent’s consent, and they are withholding that consent, the application would be for a Specific Issues Order. This is an order allowing the person applying to make decisions without the consent of the other parent.

If the other parent wishes to take the child abroad, and you do not agree, then you would need to apply for a Prohibited Steps Order (PSO). This type of order prevents someone from doing something that they would otherwise be able to do by virtue of having PR. For example, if the mother has a “lives with” order, then she can take the children abroad for up to 28 days. If the father does not consent, he would need to apply for a PSO.

If an application is made, the Court will reach a resolution that is in the best interests of the child or children, having regard to the Welfare Checklist. The Court considers any concerns about the child or children not being returned to the country.

At Hawkins Family Law, we recommend that you get professional legal advice as early as possible. If you would like legal advice on parental responsibility and whether you can take your children abroad – or how to stop your ex-partner from taking your children abroad – talk to us in confidence and find out where you stand.

Our team of family law specialists – in London, Milton Keynes, Bicester and Watford – can advise and guide you from the moment we start working with you.