Ep. 36 – Can I take the children on holiday after separation?

Jen Curtis: Welcome to the Explaining Family Law podcast. I'm joined by Rebecca Latham, who is an associate solicitor in our Cambridge office. Hi, Becky.

Rebecca: Hi Jen thanks for having me.

Jen Curtis: So today we're going to look at the situation that might arise if two parents who have separated and one of them would like to take their child abroad just for a holiday. It's a question that we see come up, time and time and again, and hopefully this podcast will give you some initial insights, and hopefully a better understanding of how that works in practice. I'm going to put you on the spot, Rebecca. If I was to come to you and say, "Can I take my child abroad on holiday?"

What would be your one word or perhaps your one sentence answer to that question?

Rebecca: Unfortunately, the one-line answer is, it depends. Like the vast majority of family law questions.

Jen Curtis: Okay. That is completely understandable. Why don't you take us through those different factors that it might depend on?

Rebecca: Absolutely, Thank you. The starting point for decision-making in this respect is parental responsibility as it is in the vast majority of decisions that relate to children, so other things include schooling, medical decision-making, a significant trip abroad falls within that category as well. 

So, the first consideration really is do you need consent of those with parental responsibility? The answer to which usually is yes. So this applies regardless of whether arrangements feel informal or if you've gone on this holiday with your child every summer. So, you may take annual trips to Spain and there might be an assumption there that consent is running year on year but that isn't actually the case. 

You will need consent every trip and getting that consent in the appropriate form is the right way to do it. So, when we talk about what consent looks like would always suggest that that is done in written format. So going to the other parent that has parental responsibility and agreeing in writing what the arrangements look like.

We would say in those circumstances to be as transparent as possible include full details of the trip including flights, where you'll be staying any reassurance around return. And the reason for that last point really is that that is often one of the areas of concern for the other parent when it comes to holidaying abroad and it can escalate and concerns can arise when it comes to things like abduction which I'm sure we'll come onto very briefly in a moment. 

I should flag though Jen, that there is one exception to this. And when I say this, I mean getting consent from the other parent with parental responsibility and that is if there's a child arrangements order in place.

So, where there's a child arrangements order that says that one the child will live with one parent that parent that has this lives with order can take the child abroad for up to 28 days without consent of the other parent. Unless of course there's an order in place that says otherwise. But we're gonna assume for these purposes that that's not the case.

Jen Curtis: Fantastic. And I think that point about having a court order is really important. Because I'm right in understanding that often court orders can be expressed on the basis that the child lives with both parents. So actually, in that scenario both would be able to sort of take their two weeks in Spain without necessarily having to obtain the consent of the other person. I guess you would be advising clients that there should still be a level of communication about that?

Rebecca: Absolutely. I think there is obviously a difference between consent and scenarios in which you absolutely need to obtain it and having that there and having written agreement just in case something goes awry or if one parent then subsequently disagrees with the trip for whatever reason we would always say it's better to do that in writing.

So that sort of takes me onto what you would do in a scenario in which consent is refused. So if you'd gone to the other parent, you'd explained the details of the trip and that they were not willing to support that holiday for whatever reason. There are a number of ways in which you may to resolve that, starting for just having a conversation if that's safe and viable and something that you're comfortable to do. It might be that you can sit down with family in a room together and try and explore reasons why the other parent isn't happy to give their consent.

Another option would be mediation so taking the concerns or the disagreement to a qualified mediator who will be able to be that neutral party in the room and explore any concerns that the other parent may have. And also explore the reasons why that holiday would be really in that child's best interest and why they are obviously going to want to go on that holiday to Spain. But having that neutral party in the room can really help facilitate those conversations. If after having tried those options it's apparent that there is a fundamental disagreement in relation to that trip, it may be that at that time it's suitable to instruct a solicitor to help. That may be via solicitor correspondence and seeing if an outcome can be negotiated. 

If that is not the case which in all cases we would be hopeful that it would be but there is the option at that stage to consider making an application to court for a specific issue order. And a specific issue order is not exclusive only to international travel. It essentially does what it says on the tin. It's an order from the court about a specific issue and in this scenario that would be granting permission to travel and that would then start the court process of hopefully resolving that discrete area of disagreement between you.

Jen Curtis: And I think sort of the different process options that you've outlined there really highlight that you could have a bit of a process to go through to be able to get agreement.

Whether it is just in terms of the amount of information you have to share with the other parent so that they can kind of give their informed consent or whether it's potentially having to allow time for a court application. Having an early conversation about your plans and sharing information has got to be the right way to go.

Rebecca: Definitely. Having that conversation early, getting advice if you need it, but also allowing time to have really transparent and open conversations and trying to understand what the concerns are for that other parent and if that can be addressed without the involvement of court. But as you say if it is needed that that does typically take a matter of time and that process needs to run from start to finish.

Jen Curtis: Absolutely. And just wonder very briefly, what are some of the most common reasons that, that you've seen in, in practice for people feeling either uncertain about a trip or, or just feeling outright unable to agree?

Rebecca: It varies significantly Jen. Right from this being a new thing, so a very recently separated couple and the parents haven't had to have these conversations before and it's the first time they're exploring what they are and aren't comfortable with when it comes to international travel and how much information one parent might want to have in order to decide whether they're happy with that or not.

That's possibly one of the more common reasons in early separation I think, can be scenarios and we do see this more and more often that people are concerned about significant and long-term risks, for example international abduction and that's particularly common in scenarios where we have possible dual citizenship or the child having two passports.

In those scenarios it's really important to be having those conversations as we've touched on already early but to assure the other parent that this isn't a scenario where there's any intention to retain that child abroad or anything close to that. It's simply a holiday abroad. But I think that can sometimes be in the back of parents minds that there's a bigger plan or there's a bigger concern here. So having that opportunity to talk it through and reassure each other I think is a really important step.

Jen Curtis: Absolutely. And I think the discussions about the holiday can also be quite heavily influenced by where in the world the proposed holiday is. I know we've jokingly referred to two weeks in Spain as sort of your stereotypical summer holiday. But actually, travel could be proposed to anywhere in the world. Sometimes that can be places where there's perhaps ongoing conflict and there's concerns about safety of the country that the child is traveling to. 

But also, I think it's worth highlighting that countries sometimes have different expectations when it comes to travel and what they would do if a parent did go against their word, and sort of stay for longer than planned in that country. So I think considering where you're planning to take the children on holiday and sort of the knock-on consequences for that can be quite important too.

Rebecca: Yes, definitely. It does certainly depend on the country in question, and if we were to be in court proceedings, and I'll use that as an example, the court is going to place weight on the location, particularly if it's a non-Hague Convention country. And if that, that information can be easily found online, a full list of countries that are not signed up to the Hague Convention. 

But what, we essentially mean by that is, if travel to that country is planned, there is going to be more concern about the ease at which that child could be returned to this jurisdiction if the child were to be retained there. And it's for that reason that there is a slightly higher of concern in those sorts of cases. But that's not to say that it's completely out of the question. 

And if one of those countries, so if a non-Hague Convention country were to be the destination of travel, there might be family there the court will certainly weigh up those considerations and, and balance the welfare risk, the possible risk of non-return, but also fundamentally what is in that child's best interest in the specific facts of your scenario and your family's situation. 

Jen Curtis: Fantastic. I think there isn't a better way of concluding things than how you've just highlighted it there, Becky. So thank you very much for joining us, and as always, our listeners are invited to, to get in touch if they've got any follow-up questions

Rebecca: Thank you, Jen.