Separated Parents’ Holiday Rights

If you’re a separated parent, do you know if you can you take your child on holiday and do you need your ex’s consent?

What does the law say about separated parents’ holiday rights in the UK?

In the UK, all mothers and many fathers have legal rights and responsibilities as a parent. These rights and responsibilities are referred to as ‘parental responsibility’. Where a person has parental responsibility, the most important role will be to protect and maintain their child(ren), and to provide a home for them. They will also be responsible, amongst other things, for decisions about their child(ren)’s health, education and welfare.

If the parents are separated but they both have parental responsibility for any child(ren), by law, the primary carer must include the other parent when making important decisions about their children’s lives. For example, if the parent with primary care wants to move abroad with the child(ren), both parents with responsibility must agree to this in writing.

However, the parent with primary care does not always need consent of the non-custodial parent for routine decisions, even if that person also has parental responsibility. This means that where the custodial parent wishes to take their child(ren) on holiday in this country, unless there is a child arrangements order in place where a holiday would coincide with any contact dates, permission from the other parent would not normally be needed.

Equally, where a non-custodial parent with parental responsibility is looking to take their child(ren) away somewhere in England and Wales, for example, where they have booked a week’s holiday camping, provided the length of the holiday and dates fall squarely within the scope of any court-ordered contact, permission will not strictly be required.

If, on the other hand, any proposed holiday plans will impact the contact arrangements that have been put in place by the court, the other parent must first agree to this. However, this is essentially is about varying a child arrangements order, rather than agreeing to a holiday per se, where the court’s intervention may be required if agreement cannot be reached.

Does a separated parent need permission to take children on holiday?

Whether or not a separated parent needs permission to take their child on holiday will depend on a number of factors, including whether there is a court order in force regulating with whom the child should live and with whom they should have regular contact. If a child arrangements order is in force, this will impact the holiday rights of separated parents, although the issue of permission only usually arises in the context of plans for holidays abroad, ie; where a child is being taken out of the country.

In cases where a child arrangements order is in place, the parent with whom the child lives can take the child abroad any number of times without permission from the other parent, provided each trip is for less than a month. An exception to this rule would be if the court has previously ordered that the custodial parent cannot do this. Equally, should the other parent be unhappy about their child(ren) being taken overseas, even for a short period of time, they can apply to the court for what is known as a prohibited steps order to restrict this right. Under section 8 of the Children Act 1989, a prohibited steps order can stop a parent from doing certain things without the court’s permission.

In the event that the parent with whom the child lives wishes to take the child abroad for longer than one month, under the ‘removal from jurisdiction’ provisions of the 1989 Act, section 13 requires that parent to obtain the written permission of everyone who has parental responsibility for the child. Alternatively, they can obtain the permission of the court. Likewise, if the parent with whom the child only has contact wishes to take the child abroad for ‘any’ length of time, they must obtain permission from everyone with parental responsibility or from the court. In all cases, the permission should be in writing and it should be clear that permission is being given for the purposes of a holiday only.

In circumstances where there is no child arrangements order in force in respect of the child, and either parent would like to take the child abroad, permission should again be obtained from everyone who has parental responsibility or, failing that, permission should be sought from the court by way of a specific issue order. As with a prohibited steps order, a specific issue order can be sought under section 8 of the Children Act, where the court can make an order to decide a particular issue that the parents are not able to agree on.

Absent any child arrangements order, although the parent taking the child abroad would not be in breach of any court order for doing so without permission, it is always best for a separated parent to obtain written consent from the other parent. This is not only advisable as a common courtesy, but because taking a child out of the country without first obtaining consent of the other parent could easily result in allegations of child abduction. If an application is made to the court under the Child Abduction Act 1984, this will involve both time and expense, and may well impact the terms of any future child arrangements order.

Do the rules differ for holidays in the UK or abroad?

When it comes to taking a child on holiday in the UK or abroad, as set out above, different rules apply. This is because there is generally greater scope for a parent to object to a foreign holiday, or rather their child(ren) being taken out of the country. As the rules stand, as long as there is no child arrangements order or other relevant court order in place, everyone with parental responsibility must agree to a child being taken out of the country, even for a week’s package holiday in Europe. Without that consent, there would need to be an application to the court to ask for permission for the holiday to go ahead as planned.

In making a decision, the court will consider the welfare and best interests of the child(ren), taking into consideration the welfare checklist at section 1(3) of the Children Act. The welfare checklist includes the following factors:

the ascertainable wishes and/or feelings of the child, considered in light of that child’s age and understanding
the child’s physical, emotional and/or educational needs
the likely effect on the child of any change in their circumstances
the child’s age, sex, background and any other characteristics considered relevant
any harm which the child has previously suffered or is at risk of suffering
how capable each parent is, and anyone else whom the court considers relevant, of meeting the child’s needs.

In most cases, no matter how uncomfortable the other parent may feel about their child(ren) being taken abroad, if there are no obvious welfare issues, the court will usually permit a separated parent to take their child overseas for a short period of time.

Can a parent be prevented from taking any child(ren) on holiday?

Where the proposed holiday is in the UK, there may be little that can be done to prevent this from going ahead, assuming the plans are in line with any court-ordered contact. The best option in these circumstances would be for the parent with objections to try to discuss their concerns with the parent who has planned the holiday. In this way, it may be possible to agree on an arrangement that both parents are comfortable with.

However, if agreement cannot be reached and the parent with objections has legitimate concerns over the welfare of their child(ren), they should immediately seek legal advice with a view to making an application to the court to prevent the holiday from going ahead. Similarly, if agreement cannot be reached about a holiday abroad, a scenario which is typically more common in practice, the court can be asked to intervene.

In either case, the judge will consider whether any objection to a holiday is simply a parent’s preference, or if they have a well-founded reason in the context of the child’s welfare. Objecting for objection’s sake is likely to be seen as unreasonable by the court, although there may be cases where a parent has legitimate welfare concerns, including:

where the parent planning the holiday has given the parent objecting to the holiday cause to suspect that they would neglect their child(ren) whilst away
where the child has a medical or health condition, where being away might impact the care that they receive or may need to access
where the holiday will interfere with the child’s education and/or out-of-school schedule
where the holiday location, or the travel arrangements, are not considered to be safe.

As such, the short answer is “yes”, a separated parent can be prevented from taking any child(ren) on holiday, both in the UK and abroad, although this will usually require the court’s intervention. In many cases, however, it can often be better for the parents to find a way forward on mutually agreeable terms, so as to avoid any additional acrimony and bad feeling that, of itself, is rarely in a child’s best interests.

What if your ex is trying to stop you taking your children on holiday?

Co-parenting does not have to be complicated, especially when parents can work together in the best interests of the child(ren). However, if one parent is being unreasonable, preventing the other parent from taking their child(ren) on holiday without justification, an application can be made to court for an order to allow a family holiday to go ahead. Ideally, this should be done well in advance of the holiday to avoid disappointment and delays.

However, it is typically last-minute holiday plans, or keeping plans a secret until the last minute, that will be the cause of any opposition, where having an early conversation with the other parent about a proposed holiday can often be the best approach. In this way, there will be time for any concerns to be raised and alleviated. Still, even where agreement can be reached, without the court’s intervention, that agreement must be put in writing.

Without written permission, it is possible that allegations could subsequently be raised of child abduction. It is also common for airport security to ask for evidence of the other parent’s permission that the child(ren) can travel abroad, especially if the surname on the passport of the parent and child travelling together are not the same. Any consent letter should include the other parent’s contact information and details of the holiday itself, including the destination and dates, together with confirmation that the holiday is agreed.

What happens if you do not have parental responsibility?

In cases where the parent planning a holiday does not have parental responsibility, permission ‘must’ be sought from the other parent and anyone else with parental responsibility. This can often leave absent fathers in a very difficult position when it comes to taking their child(ren) away if the mother objects, even if those objections are not reasonable. It is open to the father to seek an order from the court, giving permission for a holiday to go ahead, although it can often be better for the father to apply in advance for parental responsibility, in this way putting him in a much stronger position moving forward.

By law in the UK, a mother automatically has parental responsibility from a child’s birth, whilst a father usually has parental responsibility, but not always. A father will only have parental responsibility if he is either married to the child’s mother or named on the birth certificate, albeit after a certain date, depending on where in the UK the child was born. However, a father can apply to the court for parental responsibility if he does not automatically have this, where an order will usually be granted in most cases, provided there is evidence of a sufficient degree of commitment and attachment.