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I’m Divorced, Can I Take My Children On Holiday Abroad? – Divorce



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With the summer holidays upon us, many families will be
planning holidays abroad. For separated and divorced parents this
can be a particularly difficult time of the year. Jenna Atkinson
from Harrison Drury’s divorce and family law team considers the
issues that may arise where agreement cannot be reached and
outlines what steps can be taken to resolve matters regarding
holidays abroad.

What is the law regarding taking children abroad?

It is worth noting that no-one can remove a child from England
and Wales for any reason, including for holidays, without the
permission of every person who has parental responsibility or
permission of the court.

Written permission of anyone with parental responsibility is
required. It is a criminal offence to remove the child without such
permission.

Parental responsibility is defined in s3 (1) Children Act 1989
as “all of the legal rights, duties, powers, responsibilities
and authority which by law a parent of a child has in relation to
the child and his property.”

A parent should not unreasonably withhold consent. The court
will frequently ask itself: “is it in the child’s best
interests to go on the holiday”. This indeed is a wide-ranging
question and there can often be strong arguments made by both
parties.

However, communication and compromise can often be key to a
happy summer break for everyone involved. If matters cannot be
agreed in relation to the holiday, then it is vital to seek legal
advice as a matter of urgency before making any firm
arrangements.

What to do if the other parent will not consent to taking your
children abroad

If the other parent will not agree to you taking your child(ren)
abroad there are a few steps to consider:

  • Discuss your plans: The first step would be to
    try to discuss what the reasons are for not agreeing. It may be
    that a compromise can be reached, for example often it is agreed
    the child can Facetime every few days when away to keep in touch
    with the other parent. It is often suggested as a way of trying to
    keep things amicable, to also provide full details of flights and
    accommodation, for transparency and in case of emergencies.

  • Come to an agreement via a solicitor: If
    discussions do not prove successful between you both, matters can
    often be agreed via solicitors’ correspondence. If this does
    not work, a court application may be required.

  • Seeking mediation: In most situations before
    you can make an application to the court, a Mediation Information
    and Assessment meeting is required (MIAM). The mediator will be
    able to discuss whether the case is suitable for mediation. If it
    is, then your ex-partner will be invited to attend a MIAM and then,
    if appropriate, a joint session will be set up to discuss matters.
    Mediation can often be a very productive way to discuss matters and
    reach an agreement with a neutral person who is trained to
    assist.

  • An application to the court: If an agreement
    cannot be reached, then a court application for a Specific Issue
    Order may be necessary. Sometimes an application can be heard on an
    urgent basis but often applications can take weeks to reach a
    courtroom, so it is vital that advice is sought at the earliest
    opportunity. The welfare of the child will be the court’s
    paramount consideration and the court will consider all factors
    with reference to what is called “the welfare checklist”
    in making such decisions.

The advantages of forward planning

If you are planning to take your child(ren) abroad for a family
holiday and need permission from their other parent or guardian, it
is advisable to seek legal advice at the outset of matters. Each
case is unique and has different circumstances and therefore the
prospects of success can vary.

When formulating a plan in relation to holiday contact –
whether you plan to go abroad or not, it is advisable to address
not only the immediate holidays approaching; think about
arrangements for Christmas and Easter too, as well as other special
occasions such as birthdays. It may also be worthwhile to make
plans for the next few years so both you and your ex-partner have
the chance to share key calendar dates with your children.

The use of a calendar system may also be beneficial, as the
visual representation of where the child will spend their holiday
time can provide clarity for all involved, while being a helpful
tool to prepare the child for any upcoming holiday contact.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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