Taking your children to overseas holidays after divorce
Finalising a divorce can be an extremely difficult and emotional process to endure. It is a relief once this process is over and both parties can move forward with their lives separately. However, when children are involved in the process, this can be difficult and there are certain rules and regulations that must be followed when the issue surrounds the welfare and well-being of a child.
A minority of divorced parents are under the assumption that they do not require the permission of their child’s other parent when taking their child abroad or overseas for holidays however, this assumption is incorrect and could lead to potentially harsh consequences.
What should I do before I take my child on holiday following a divorce?
If there is a Child Arrangement Order in place and the Order expressly states that a child must live with the parent who is seeking to take the child abroad, then the parent with whom the child resides (resident parent) can take their child abroad for up to 28 days without obtaining consent from the non-resident parent. It should be noted that a Child Arrangement Order dictates with whom a child should reside, how often the child sees the non-resident parent and what other forms of communication are permitted.
If there is no Child Arrangement Order in place, the general rule is that a parent who wishes to take their child abroad must first obtain the written consent of those who hold parental responsibility. Parental responsibility is defined under section 3 of the Children Act 1989 as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. It is worth noting that mothers acquire parental responsibility automatically however, fathers will only acquire automatic parental responsibility if he was married to the mother of their child at the time of the child’s birth.
Contact us you if require assistance in determining whether you have parental responsibility, or if you require further guidance on applying for a Child Arrangement Order.
The written consent obtained must include the other parent’s contact details including, address and a contact telephone number. It is also useful to ensure that the letter specifies how each party is related to the child. Some also take their child’s original birth certificate in case there is an issue at the airport or if there is a later dispute in the Family Court. It is therefore vital to inform the other party/parent of a planned holiday overseas as soon as possible as well as providing the full details of the flight and accommodation arrangements whilst abroad.
Consent may not always be obtained from the other party despite all efforts of persuasion which is quite common after a divorce as parents do struggle to agree on what is in the best interest of their child. There have been instances where a parent has applied to the Family Court for a Prohibited Steps Order which prevents a parent from undertaking a certain action or making decisions about their child, for example going on certain planned trips or events, if express consent was not obtained from the other parent.
In cases where one parent refuses to consent to a trip abroad, the parent who is seeking to take their child abroad can make an application to the Family Court for a Specific Issue Order which is an order requesting the courts to look at a specific question which in such cases will be whether the child should be allowed to go abroad with their parent. If an application for a Specific Issue Order is successful, it will automatically override the other parent’s refusal to allow the child to be taken abroad.
If you require legal advice on how to submit a successful application for a Prohibited Steps Order or a Specific Issue Order, then contact us without delay.
What are the legal implications of taking my child on holiday without consent?
It is extremely important to note that taking a child abroad without permission from the other parent or the Family Court as well as not returning the child within the agreed time, is considered to be child abduction. Child abduction is divided into three different categories:
- Abduction – this is where a child is taken abroad without the consent or permission of the other parent which is a criminal offence.
- Wrongful retention – this is where a child is taken abroad and kept abroad without the relevant consent of the other parent.
- Threat of abduction – this is where the child is at risk of being taken abroad without the consent of the other parent.
Child abduction is a very serious criminal offence and should not be taken lightly as it can lead to prosecution as the offence carries a fine and/or two years imprisonment. It is therefore, essential to seek appropriate advice and guidance from specialist family law solicitors as they will be able to assist parents in such situations to make the right decision without committing a criminal offence.
It also helps to remember that such an offence will not only ruin the parent’s future but will also mean that the parent loses out on developing their parental relationship with their child properly. The Family Court is willing to assist parents in providing their children with the best possible life as the courts have a legal obligation under the Children Act 1989 to regard the welfare of a child as paramount consideration. It is therefore, always better to utilise the power of the Family Court rather than making a decision alone without proper legal assistance or guidance.
Contact us today and our dedicated team of family law specialists will be able to resolve your matter during a professional, friendly and confidential discussion.