Author: Teresa Cullen
We are all focused on remembering the holiday essentials of passport, tickets, sun cream etc. but what can often be overlooked in the holiday preparations (usually in the case of separated families) is to ask the “other parent” to give consent to their child being taken on holiday , or as it is more formally put, removing the child from the jurisdiction of England and Wales even on a temporary basis.
Where the parties remain happily married, or are happily cohabitating, there are usually few difficulties. The pressure point comes in separated families where one parent, for good reason or bad, chooses to oppose a child’s holiday.
In order to have a say in whether the child can be removed from the jurisdiction, the other parent needs to have Parental Responsibility for the child. This comes about in cases where the parents were married at the time of the birth, or where the father is named on the child’s birth certificate (and a number of other less common methods). Assuming the parent has the right to object, it can (in certain circumstances) constitute a criminal offence for the parent wishing to holiday with the child to do so without the other parent’s consent, or indeed in defiance of the other parent’s opposition. This could lead to committing an offence of Child Abduction, and in extreme cases your send off at the airport or sea port will be not focused on collecting your duty free, but on explaining the position to the police!
There are incredible safeguards, that are able to be operated at almost the blink of an eye, to ensure children’s safety, which is primarily what the “Leave to Remove” legislation is all about.
In the event the parents cannot decide, the Court remains the final arbiter. At this time of year, the Court is inundated with applications for temporary “Leave to Remove”/holiday permissions and also in a number of cases applications for “Permanent Leave to Remove” i.e. where one parent wishes to relocate with the child, often seeking to be established in the other jurisdiction in time for the start of the next academic term.
So what can be done?
Above all, raise the idea of a holiday early and preferably before the tickets are bought. Think carefully about your plans, have a plan for maintaining contact with the other parent about the holiday, where the child is used to either seeing them on a very regular basis, or being in indirect contact. Make use of WhatsApp, phone calls, emails etc. Give clear information as in “we will be staying in a villa in Spain from dates X to Y”, “we will be travelling from X Airport” and, unless there are reasons not to, give the flight numbers. Many parents still worry about their children and air travel.
Of course there will be parents who seek to obtain a selfish advantage, ignoring the child’s wishes and importantly the child’s best interests. Most of the time a holiday will be in the child’s interest, and this is something that the Courts will support. The Court’s anxiety will be heightened in the event of opposition, if the holiday destination is to a country where there is a risk that the other parent will flee i.e. not return the child to the jurisdiction after the holiday, or where there is Foreign Office advice not to travel, or where there is any other risk to safety, including travelling in the company of people who are “unsuitable”.
Also bear in mind that this law relates to travelling outside of England and Wales. So whilst consent or permission is not required in order to spend a week with Granny in Cardiff, the same would not apply to spending a week with Granny in Glasgow where the other parent’s consent or the Court’s permission would be needed (Scotland is a separate jurisdiction).
As ever we advise that you discuss the matter with a family law specialist expert so that the only hot water you get into over the holiday season is the heated pool.