Holidays with your children post separation – things to consider

As we approach the holiday season the temperature of the relationship with a former partner can begin to rise when the parties discuss taking the children on holiday.

It doesn't need to be this way. With a little gentle, expert advice and a reassuring guiding hand, this potential time of conflict can be navigated with little or no stress.

The starting point and a note of caution

If there is a court order, a Child Arrangements Order, (it used to be called a Residence Order) which stipulates where your children should live and the contact levels between parents and children, this will always be the first port of call for any family lawyer.

It can sometimes be tempting for the parents to informally agree a variation to the court order, allowing one parent to take the kids on holiday for a couple of weeks, despite this being in breach of the court order. Often, such an agreement won't cause any problems but there is a good deal of risk in taking this course.

Courts do not like their orders being breached. Let's say Dad takes the kids away, in breach of a court order, with the informal agreement of Mum. If, for whatever reason, the relationship deteriorates and Mum reneges on the agreement, this could put Dad in a very vulnerable position. Of course, the same applies if the positions were reversed.

The far better course in such a situation would be to have that agreement in writing, a solicitor's letter between the lawyers for both Mum and Dad - 'formalising' that agreement helps mitigate the risks of unpleasantness further down the line.

On the other hand, if you are the person who holds a Child Arrangements Order you are permitted to take your child abroad for no more than 28 days without seeking the permission of the other parent. Nevertheless, even though this is your 'right' it is sensible to consult with the other parent, helping to keep the relationship as positive and as conciliatory as possible for the future benefit of all concerned, especially the children.

What if there is no court order?

Parental responsibility (PR) is a legal term which simply dictates who can make important decisions about the child. As long as both parents are named on the birth certificate both Mum and Dad would ordinarily have PR. Others can have PR also, but this is less common. If you're not sure whether you have PR, or if you haven't got PR and would like it, please get in touch and we'll help you with this.

As a general rule, even if Mum or Dad have PR they should not take the child out of the country without the permission of the other parent. To simply take the child abroad without receiving permission could be child abduction, a criminal offence. A short spell in prison would probably spoil your holiday.

Passports

If you wish to take your child abroad they will, of course, need a passport but not everyone can get a passport on a child's behalf. If the child is 15 years old or younger, the application needs to be made on the child's behalf but if they're between 12 and 15 years of age, they'll need to sign the application form too.

In applying for a passport, the issue of Parental Responsibility is relevant once again. To apply for a passport on a child's behalf you need to have PR. If there is more than one person with PR you need to obtain written permission from each person with it.

The usual time scales for receiving a new passport for a child is three weeks from date of application. Therefore if you want to take your child away for the holidays, you'll need to get permission first and then apply for the passport, so make sure you begin this process in good time.

What happens if someone with PR refuses?

Ordinarily, even if someone with PR initially refuses to give permission to either obtain a passport or allow you to take the child abroad, with careful, gentle negotiation, they can often be persuaded to give that permission. We will always try and negotiate a sensible resolution rather than taking the matter to court. Time and again, a polite letter from a solicitor, explaining the reasons why you want to take the child abroad proves to be an effective way of taking the heat out of the situation and will often result in an agreement that is acceptable to both parties.

It should be noted that an application to the court and asking a court to make a decision about the issue is almost always the more expensive option. To quote Winston Churchill, Jaw Jaw not War War should therefore be the preferred approach.

However, if the parties can't come to an agreement an application can be made to the court. With careful preparation, a sensible application and a reasonable approach, courts are generally positively pre-disposed to granting this type of an application. The solicitors at Wards will be able to advise you about what you'll need and your chances of success.

What if I suspect my former partner is going to take out child abroad?

Whether that person has PR or not, you can make an emergency application to the court to prevent them from taking the child abroad, this is called a Prohibited Steps Order.

The solicitors at Wards have a good deal of experience in applying for court orders preventing the removal of a child from the jurisdiction where, for instance, it is suspected that 'holiday' is simply a ruse for re-location. In such cases it is important to obtain as much evidence as possible about the real intentions of the other parent, Facebook posts, WhatsApp messages or an email 'out of office' responder can all prove to be good sources of evidence to establish the true position.

On the other hand, if your former partner has a genuine wish to take your child on holiday then Wards solicitors can help in arranging safeguards that will help to reassure you in the event that you agree to allow the child to go on holiday.

Summary

The holidays can act as a flash point. This can be avoided. It is important to plan well ahead, to seek early advice, to contact your former partner and ask for permission well in advance of the intended holiday. This will allow you to negotiate, without the pressure of time.

If then, further advice or action is needed from your lawyers, there is still plenty of time for this to take place and hopefully, without needing to go to court.

Wards Solicitors has an experienced team of eight family and divorce law specialist solicitors ready to help and 11 local offices for face to face meetings.