When school holidays approach we are sometimes asked whether one parent can take children abroad for a summer holiday without seeking the permission of the other parent. It’s a sensitive question. One that, as with most types of family law disputes, is best resolved through private discussions between the parties – with the assistance of a solicitor if necessary.

The reality is however that agreement isn’t always possible. There may be lingering rancor and mistrust following a separation or the plans your former spouse has for holidays with the children might mean your own plans will be curtailed or have to be abandoned altogether. So what are the rules about taking children abroad on holiday?

Who Has Parental Responsibility?

The first thing to consider is who has parental responsibility for the child because this will often dictate who can decide issues like taking a child abroad on holiday. If parents share responsibility they must discuss and agree all child arrangements. This includes holiday plans particularly if the holiday involves a trip abroad.

Is There A Child Arrangements Order?

At the time of divorce or separation (or subsequently) there may have been an order setting out child arrangements. This may stipulate how holidays are to be shared and what steps must be taken if the child is going abroad with one parent. If so, the terms of the order should be followed. If there is a prohibited steps order preventing the child from being taken out of the country this will be strictly enforced by the courts.

The child arrangements order may indicate that the child lives with one parent. If so the general rule is that the child can be taken abroad without the consent of the other parent for up to four weeks. This is the case even where the other parent shares parental responsibility.

Can The Court Give Permission?

While it’s always preferable for parents to agree holiday arrangements for children between themselves, this isn’t always possible. The question of holidays is effectively a decision about the upbringing of a child. The courts can therefore decide the issue under The Children Act, 1989. In making a decision the court will have regard to the Act’s ‘welfare checklist’. That means looking at the following factors:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  • The child’s physical, emotional and educational needs
  • The likely effect on him or her of any change in circumstances
  • The child’s age, sex, background and any characteristics which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the needs of the child

Is There A Possibility Of Child Abduction?

The chance of a more permanent removal of the child from the jurisdiction of the courts of England and Wales, facilitated by a family holiday abroad, is something that is now on the radar of all family law judges.

If you believe your co-parent intends to remove the child from England and Wales for an extended period or permanently you should raise it with your solicitor and the courts as soon as possible. In making any decision under the Children Act the courts can use all its powers to insert into the final order safeguards to minimise the risk of abduction. Where the issue of child abduction is raised by one party courts are likely to make extensive enquiries of the parent wishing to go abroad wit the child. In particular the court will establish whether the holiday destination is in a country that has signed up to the Hague Convention on Child Abduction, an international treaty signed by 100 countries that facilitates the return of a child to the country in which he or she is habitually resident.

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