Thinking of a family holiday in the sun?

14 Feb 2014

With Christmas over and the winter seeming to drag on indefinitely, many of us are now turning our minds to sunnier climes and potential holiday destinations.  For the vast majority, this can be an exciting prospect and something to look forward to.  However, if you are a single parent, booking a foreign holiday for yourself and your children can become a legal nightmare, fraught with frustration, stress and further expense.

The Children Act 1989 provides that the parent who has the benefit of a Residence Order in favour of their children can remove their children from the United Kingdom for a period of up to one month.  In those circumstances, the parent with the Residence Order does not need the other parent’s written consent for this purpose.

However, if the parent wishing to take the children on holiday does not have the benefit of a Residence Order, then the other parent’s written consent will be required.  Should this written consent not be forthcoming, then an application will need to be made to the Court for an Order allowing the removal for the purpose of the holiday.

Should a parent who does not have the benefit of a Residence Order attempt to remove the children from the United Kingdom without having obtained the other parent’s written consent, or an Order of the Court allowing them to do so, then they may be prosecuted for committing an offence under the Child Abduction Act 1984.

For the vast majority of separated or divorced parents, obtaining the required written consent does not cause any difficulties.  However, there are always going to be cases where one parent is not prepared to provide that written consent, and this could be for a variety of reasons; maybe because they have a genuine fear that the children will not be returned to the United Kingdom; the proposed holiday coincides with their own holiday arrangements; they do not wish for the children to be removed from school or they do not consider the proposed destination to be safe or appropriate for their children.  Unfortunately, there will also be those parents who simply resent that the other parent is able to take the children on a foreign holiday.  This then leaves the parent wishing to book the holiday having to consider an application to Court for an Order allowing them to remove the children from the United Kingdom, thus incurring additional expense and delay.

Save in exceptional circumstances, before any application is considered by the Court, the parent seeking the Order must first consider mediation as a means of settling the dispute.  Whilst mediators are experienced and adept in encouraging parents to negotiate and reach a settlement, there are still those cases where both parties remain entrenched and agreement just cannot be reached.  An application to Court, therefore, becomes inevitable.

There is no guarantee as to how quickly a Court will be able to hear and determine an application relating to a holiday and, of course, when the Courts are considering applications concerning a child’s welfare, these cases do not take priority.  In the circumstances, the chances of securing a holiday package on a last minute deal are often scuppered when faced with an entrenched parent who refuses to provide their written consent.

As with all applications concerning a child, the Court’s paramount consideration is the children’s welfare and the Court will need to determine, therefore, whether or not a holiday abroad is in the best interests of the children’s welfare.  Unless the parent objecting to the holiday can demonstrate that it is not in the children’s welfare for them to be taken abroad, the Court are more likely to determine that the holiday should go ahead.  Further, the Court may consider whether an Order for costs should be made against the objecting parent if it can be demonstrated that the objection was not motivated by genuine concerns for the children’s welfare.

Applications to Court can often be avoided by providing to the opposing parent at an early stage and preferably before the holiday is booked, all the relevant information relating to the proposed holiday including the destination, dates of travel, accommodation and details of all those accompanying the children.  This should then be followed up with copies of the booking form and flight or ferry tickets by way of confirmation.  Agreement should also be reached as to the return of passports and who should be responsible for their safekeeping following the holiday.

In cases where one parent regularly opposes a holiday abroad, an application for a Residence Order may be considered appropriate such that it would then be possible for the parent with the benefit of that Order to take the children abroad without obtaining the other parent’s written consent.  This does not, however, prevent the other parent from objecting to the holiday; it does though place the onus upon him/her to make an application to the Court for an Order prohibiting the children’s removal from the United Kingdom and demonstrating, therefore, that such a holiday would not be in the best interests of the children’s welfare.