Foreign Holidays and Your Child – You Must Obtain Consent

Upon separation the Courts do not tend to become involved in arrangements for children if the parents are able to agree holiday arrangements between themselves. No Court Order is necessary if there is an agreement between the parents and there is no existing Court Order in place preventing this. Generally parents agree and consent to the other parent taking a child abroad and often see travel as a beneficial experience for their child particularly where there is no reason to fear that a parent will not return because, for example, there is no overseas connection, the parent owns a property in the UK, works in the UK and has family connections here. If however no agreement can be reached between the parents then an application to the Court may be made by the parent planning the trip or by the parent who wishes to prevent the trip. A parent cannot take a child abroad in most cases without consent of the other parent unless this is provided for in a Court Order. It is always best to act transparently and give the other parent plenty of notice of any planned trip and obtain their consent.

Under Section 1 of the Child Abduction Act 1984 a parent commits an offence if they remove their child, aged under 16, from the UK unless they have either 'appropriate consent', permission from the Court, or are acting in compliance with Part 2 of the Children Act 1989.

Under the Children Act 1989 (s13) where a Child Arrangement Order is in force setting out with whom the child is to live, any person named in the 'lives with order' may take the child abroad for up to 1 month. Everyone else requires the written consent of every person with parental responsibility for the child or the Court's permission. Occasionally if there have been Court Proceedings the Court will change that default position so the starting point will always be to check the Court Order if there is one.

In most cases that come before the Court the holiday is opposed on the basis of an alleged risk that a child will be retained abroad often where the trip is to the parent's home country, or where they have family connections. The Courts in these circumstances will often look at the risk involved and whether the child could be made to return to the jurisdiction if they are retained. This will largely depend upon whether the 'holiday' is to a Hague Convention country (1980 Hague Convention on the Civil Aspects of International Child Abduction). This states how the Courts will investigate what safeguards can be put in place to minimise the risk of retention and to secure the child's return if that transpires. Courts will often look at the benefits and risks to the child. In looking at the benefits they will consider the benefit to the child of being able to travel to their parent's home state, visiting their family at home and experiencing their culture. They will look at the history and the risk of retention and where the parent is based, what commitment they have to the UK, the emotional state of the parent, previous threats to remove etc. The Courts will look at whether there are any safeguards that mitigate any risks. Where there is a non-Hague Convention country the Courts and the parents are understandably going to be more concerned as the ability to ensure the return of the child is more difficult. The Courts will look at what safeguards can be put in place in these circumstances, if any.

Holidays to Hague Convention destinations are generally perceived as lower risk on the basis that if the child is retained a swift return can hopefully be effected.

Holidays are generally considered a good experience and beneficial to a child. Opposing a holiday application where there are no genuine grounds for doing so could result in a deterioration in the relationship between the parents and in some circumstances the child. Where the Court determine that the reasons for opposing the holiday are malicious this could potentially result in the Court criticising that parent and a Costs Order being made. If however, there are genuine concerns regarding a risk of abduction it is crucial that legal advice is obtained as soon as possible. A family lawyer can help you navigate this difficult area.

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For more information, please contact a member of our Family Law team on 0800 542 4245 or email info@sillslegal.co.uk.

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