By Darren White, Associate Solicitor at Taylor Rose MW
WITH many families planning summer vacations for 2023 careful consideration needs to be given as to whether parental consent needs to be obtained prior to taking that holiday.
This article aims to examine the law as it currently stands and the correct steps to take.
The position on children holidays if you have a lives with order
If you have a Lives with Order, you and your child can leave the jurisdiction of England and Wales for up to 28 days without needing the written consent of the other parent.
A Lives with Order is an Order which says where the child will live and can be made in favour of one parent or in favour of both parents.
Notwithstanding this, it is always prudent to liaise with the other parent regarding this issue. It is also advisable to keep in mind the terms of any contact arrangement with the other parent. You will want to avoid a situation where the other parent may claim that the contact arrangements order has been breached.
Permission to take a child abroad
If you do not have a Lives with Order, or the intended holiday or trip abroad is for more than 28 days, you will then legally need the permission of all of those individuals who hold parental responsibility. In many cases this will be the other parent, but it can also include Special Guardians, Local Authorities or other persons who have obtained a Parental Responsibility Order.
Failing to obtain the necessary consent from everybody who holds parental responsibility, at worst, can result in child abduction under the 1984 Child Abduction Act. It is important therefore, that appropriate steps are taken when considering taking a holiday.
Suitable steps include :
- Checking the terms of any previous court orders with provisions about your children. It is possible that these include details of what should happen. Even if you believe you have authority, double check and as a courtesy advise the other parent or guardian.
- Ensure that you give appropriate notice and do not seek to obtain consent at the last minute.
- For certainty, obtaining consent in writing is always best.
- Avoid seeking consent for holidays outside of school time. If the other parent or guardian refuses consent, you are unlikely to be able to persuade a court to order that you can go ahead outside of term time.
- If the other parent cannot be reached, then an application can be made to the Court specifically for permission to go on holiday and this is known as a Specific Issue Order application.
The thing to keep in mind here is that these applications can take time for the Court to process and therefore making an application to the Court at the eleventh hour is unlikely to be processed in time to allow that holiday to take place and as such there may be potentially thousands of pounds lost in cancellation fees.
Does it make a difference whether parents are separated or divorced?
The Law doesn’t differentiate between those couples who are separated and those who are divorced. The principles remain the same.
Is there any difference between holidays in the UK and holidays abroad?
Holidays outside of England and Wales are treated differently to those within England and Wales.To take a child outside of the Legal Jurisdiction (England or Wales) you need permission from everyone who holds Parental Responsibility. Holidays within England or Wales do not require permission, though it is advisable to provide the other parent with details of where you are going.
Concerns about a child not being returned to the England and Wales after a holiday – what to do?
In the first instance, you need to liaise with the police and then the passport agency. Help can also be sort from a consolidate within the UK related to that country. Also, prompt advice from a solicitor should be sought to obtain orders to return.
Many countries are members of the 1980 Hague convention. Being part of the Hague convention means that orders obtained within the English and Welsh Family courts can be enforced in that country.
