Summer 2022 is expected to be a boom season for families travelling abroad after the pandemic and restrictions put paid to many holiday plans for two years running.
Have you “packed” the permission to travel with your child?
As the world reopens ready to receive visitors, it is worth checking whether you have packed all of the holiday essentials. If parents of a child are separated, and one parent intends to travel outwith the United Kingdom with that child, then it is essential to get the permission of the other parent for the child to be removed for the purpose of the holiday.
This blog is designed to highlight an area which many families don’t always consider. As a result, some face trauma at passport control when challenged on whether the child with whom they are travelling is permitted to leave the country by the parent who is not present. For the purposes of this blog, I am referring specifically to arrangements in respect of holiday travel. The permission to remove a child outwith the United Kingdom on a more permanent basis requires to be considered in relocation/child abduction terms and is not being considered here.
Can you illustrate your ex—partner’s consent?
In the first instance, it is important to note that many separated parents are able to deal with all arrangements in relation to the care of their children on a cooperative working basis. This generally includes arrangements in relation to the care of the child and permission for the child to travel on holiday whether with the parent with whom the child principally resides, or the other parent.
That said, even in those cooperative circumstances, many parents are simply unaware of the need to be able to illustrate the consent of the other parent in order to assist with the travel. In those cases, though, it should be relatively simple for the other parent to be approached to provide a letter indicating permission for the child to travel from the country. In an ideal world, this permission could be formalised in the form of an Affidavit being a document sworn on oath in front of a Notary Public, but many parents do get by with a letter of permission. As much detail as possible should be put into the permission letter to enable the author of the letter to be verified. You can also consult your travel company to obtain advice on the requirements to evidence the position.
What if there is no consent?
The situation is more difficult where the parents have not been operating on a cooperative basis together and in that event certain interventions may be required to move the matter forward.
The Children (Scotland) Act 1995 imposes parental responsibilities and regulates parental rights which a parent can operate in relation to a child. These include the right to have the child living with that parent or to maintain personal relations and direct contact with the child. It is generally provided that two persons having parental rights in relation to a child can exercise that right without the consent of another, unless the position has been specifically regulated otherwise.
There is an important exception, however, where the Act goes on to specify that unless dealt with by a Court Order, no person is entitled to remove a child who is normally habitually resident in Scotland from, or to retain a child outwith, the United Kingdom without the consent of the other parent. If faced with the situation of having been refused permission by the other parent for a child to travel on holiday, the first step if agreement cannot be reached between you would be to consult a solicitor regarding the options.
In many cases, a formal invite from a solicitor to the parent with a request that consent be given may be sufficient for the refusing parent to reflect on matters and agree that, after all, it may be in the child’s best interests to be able to go on holiday. It is important to note that the intended holiday may breach a period when the other parent would be due to be with the child, whether that time has been set out in an agreement or a Court Order. If that is the case, then the agreement to travel on holiday should also include the specific agreement to the child “missing” that time with the parent.
What further steps may be needed?
If correspondence cannot resolve the matter, then a parent would have the right to raise the matter in Court to seek an Order known as a “Specific Issue Order”. This is defined in the 1995 Act as an Order regulating any specific question which has arisen, or may arise, in connection with matters in relation to parental responsibilities and rights.
Specific Issue Order
A Specific Issue Order can be sought asking the Court to make an Order indicating that the child is permitted to travel outwith the United Kingdom with a specified parent, regardless of there being no consent to this travel by the other parent. The Court can also make a finding that the consent of the other parent has been unreasonably withheld. An Order granted in these terms should be as specific as possible and it will often set out the dates and location of the intended holiday period.
On occasions, where the Court is satisfied that there is a regular failure or refusal by one parent to give permission for no good reason, then the Court may grant a general provision for the child to be able to go on holiday outwith the United Kingdom on an annual basis. If Court proceedings have had to be raised, then it would also be sensible within those proceedings to seek to suspend any existing Court Order for the other parent to have contact during the period of the holiday, to avoid the parent holidaying with the child to be in breach of the contact order. The court may then examine an alternative contact period in place of the missed period.
Does your child have a say?
The overriding principle for the court is to determine what is in the child’s best interests and therefore each case will require to turn on its own facts and any genuine opposition to the intended holiday by the other parent would be given full consideration and assessment by the court in making the decision.
It is also important to note that the court requires to take account of a child’s views when making an order which affects the child, as do the parents when making any major decisions involving the children. Accordingly, the court may require intimation to be sent to the child to obtain the child’s views about going on holiday. It is worthwhile noting, therefore, that where a non-consenting parent has no particular reason for refusing to give consent for their child to go on holiday, their child may then be made aware of that refusal.
BTO can help
BTO’s Family Law team is able to help you with all manner of enquiries relating to parental rights and responsibilities. Please do not hesitate to contact us.
Kirstine MacRae, Partner: krm@bto.co.uk / 01436 671221
