Taking children abroad when separated or divorced?

Whilst the recent baking temperatures in England and Wales may have you thinking twice about the value of booking a costly holiday abroad with the children, the summer holidays are fast approaching and holidays abroad are on the horizon for many families. For most couples and separated parents, this is a much anticipated event. However, for some it can lead to a myriad of problems, especially where parents are not in agreement with the children being taken away.

For travelling to South Africa, there is now a requirement for an affidavit to be completed and sworn by all parties with parental responsibility if the children are not travelling with both parents (or all parties with parental responsibility). This was intended to prevent international child abductions. However, some parents are not aware of this requirement, causing unnecessary stress at the very last minute to try and find a lawyer to swear the document for them and provide certified copies of all of the relevant documentation. This documentation is also required where children are attending a school trip or organised holiday abroad without their parents. All travel requirements should be checked as early as possible to ensure that no problems occur at the boarding gate.

For most parents travelling alone with the children (whether still in a relationship or separated), it is simply a case of providing the details of the proposed holiday to the other party. It is of course important that in case of emergency all parties with parental responsibility have sufficient details to ensure the safety of the children. It is common practice (and considered by the court to be reasonable unless there is a very good reason) to provide flight details, times and dates of travel, places of accommodation and any contact details to ensure that the other party is properly informed and able to contact the children (or the other parent) in case of an emergency.

The courts in England and Wales consider the welfare of the children as the main consideration in respect of any order it is asked to make. Parents should of course also have this as a top priority, but following separation (or even sometimes within a relationship) parents can sometimes disagree as to what is in the children’s best interests.

Therefore, a parent should not unreasonably withhold their agreement to a holiday abroad (after all, holidays are generally beneficial to children with the ability to experience different cultures and enjoy quality family time).

However, there are cases where objections can be justified. For example where one parent intends to take the child on holiday for a considerable period within the academic year (rather than school holidays) or there is a strong indication of an international abduction being planned.

Those who have separated can find it more difficult, as initial difficulties in the separating relationship between parents can often lead to some teething problems in co-parenting and communication. This sometimes includes disputes in respect of issues such as moving house and going on holidays abroad. Some parents may be feeling separation anxiety having not previously been separated from their children for any length of time and this can lead to disagreements.

Where there is a disagreement between parents in respect of a holiday abroad there are a number of ways in which a resolution can be met and couples can explore mediation and solicitor’s correspondence in order to try and meet an agreement.

If the parties remain in dispute, the parent wishing to travel may need to consider making an application for a Specific Issue Order setting out that they are able to take the children on holiday. Similarly the other party may make an application for a Prohibited Steps Order to prevent the children being taken abroad.

The law in England and Wales sets out that it is a criminal offence to remove children from the jurisdiction without the consent of all other parties with parental responsibility (or without a court order stating that the children live with you). If there is an order in place in relation to the arrangements for the children then (subject to any other conditions set out in the order) the party in whose favour the order is made will be permitted to take the children abroad for a maximum period of 28 days without requiring the consent of any other party. Should you wish to take them abroad for a more substantial period of time, or not have such a court order in place then you will need the consent of all parties with parental responsibility or a court order.

Court proceedings are of course a last resort (and can often cause further damage to the relationship between the parties) and therefore it is worth discussing holidays and trying to come to an agreement as early as possible (and preferably before anything is booked and paid for) to avoid any last minute hiccoughs. After all, preparing for holidays can be stressful enough (have you had any requisite vaccinations, packed everything you will need, got currency sorted and your out of office replies on) without the potential shadow of an application to the court hanging over you.

If you have any queries on anything contained in this blog please contact me.

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