With the school summer holidays now upon us, perhaps it is worth reflecting on how the law deals with children going on holiday with your ex-spouse.
Where a court order is in place (governing whom the child should live with and what contact the child should have with the non-resident parent) that non-resident parent may not remove their child from the jurisdiction. The only exception to this is if they have a court order or the prior, written agreement of all other parental responsibility holders.
If there is a child arrangements order in place, specifying that the child lives with the holidaying parent, then the holidaying parent may take the child out of the country. However, they may only do so for a period of less than one month without the permission of the other parent, providing that the holiday does not interrupt the usual contact arrangements. To prevent this holiday trip from taking place, the parent opposing the holiday would need to apply for a prohibited steps order under section 8 of the Children Act 1989.
If the holidaying parent is not the parent that the child lives with under such an order, then the holidaying parent will need to apply for permission for temporary removal under section 13 of the 1989 Act.
In considering applications for temporary removal from the jurisdiction, such as holiday trips, the court’s overriding consideration will be the best interests of the child, under section 1 of the Act. While the court is not bound to consider the welfare checklist in applications under section 13, it is commonplace to see a broad following of the general principles of section 1(3) of the Act. The court is also likely to consider the location of the holiday. The court will look at whether the temporary jurisdiction will comply with the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention), or not, should any abduction concerns be raised as part of the application process.
Where there is no child arrangements order in place, then the holidaying parent still needs to apply for leave of the court. Doing so will allow them to remove the child from the jurisdiction if they do not have the permission of the other parental responsibility holders.
If you are planning to take your children away for the summer holidays and wish to discuss matters further, then please contact us.
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