Family holidays abroad post-separation
A dispute which commonly arises between separated parents is whether their child or children should be allowed to go on holiday. Perhaps the proposed holiday is during school term-time, which the other parent does not consider to be in their child’s best interests. Maybe the child has expressed certain views to one parent which they have not expressed to the other. It may just be that any holiday will interfere with the usual contact arrangements between the child and their other parent. Whatever the reason for the dispute may be, this raises the question of, “do I need my child’s father’s/mother’s consent to take my child abroad?” If the other parent holds parental rights and responsibilities in respect of that child, then the shorter answer is yes, you do.
As another Summer holiday season comes to a close and the new school term is underway, this may be a question which is far from many parents’ minds. However, it won’t be long before the October mid-term break is upon us, and lots of people may already be planning next year’s Summer holidays now. Many parents are not aware that it is a legal requirement in Scotland to obtain the consent of the other parent before removing their child from the UK, even just for a holiday abroad. You may be under the impression that it is not necessary as you have successfully travelled abroad with your child in the past without any questions being raised. If that is the case, you were very fortunate that you were able to enjoy your holiday without disruption. However, there is no guarantee that you will be quite so fortunate on the next occasion, particularly if you have a different surname to your child. Imagine you have been saving money for years for the perfect family holiday, for weeks or months you have been buying holiday clothes and other essentials, and you have spent hours packing and planning, only to be stopped when you reach the airport and asked for proof of the other parent’s consent. Weeks of anticipation and excitement can very quickly descend into feelings of panic and despair as you face the prospect of not being permitted to board your flight. This can all be avoided if you take the appropriate steps before booking any holiday. We can help with this.
The Law
Section 2(3) of the Children (Scotland) Act 1995 provides that no person shall be entitled to remove a child (under the age of 16) resident in Scotland from the United Kingdom without the consent of a person with parental rights.
Who has parental rights and responsibilities?
The natural mother of a child automatically obtains parental rights and responsibilities upon the child’s birth. Her rights can only be removed by an order of the Court in the event of an adoption, permanence order, or an order for deprivation of parental rights and responsibilities being granted.
The child’s natural father (or other parent in the case of a same sex marriage or civil partnership) will automatically obtain parental rights and responsibilities in respect of a child if they are married to (or in a civil partnership with) the child’s birth mother when the child was born, or conceived. They will also obtain parental rights and responsibilities automatically if they are named upon the said child’s birth certificate (after 4 May 2006).
Otherwise, parental rights and responsibilities can only be obtained in the following ways:
- A signed and registered Minute of Agreement with the child’s birth mother (as long as her parental rights and responsibilities have not been removed) under s4 of the Children (Scotland) Act 1995 (commonly referred to as a “Section 4 Agreement”).
- An Order of the Court.
If your child is living with someone other than a parent, for example, with a grandparent or other family member, they may apply to the Court for parental rights and responsibilities. These will not be obtained automatically.
How do I obtain consent?
If you are on speaking terms with your child’s father or mother (or any other person who holds parental rights and responsibilities), then the simplest way of obtaining their consent is to ask them directly. Although there is no legal requirement for consent to be obtained in writing, it is obviously far more difficult to prove verbal consent to airport security staff. A text message or email may be sufficient, but you may wish to consider a longer-term agreement to avoid the need to obtain consent in respect of each and every individual holiday until your child reaches the age of 16, particularly if you like to plan a holiday abroad each year. By entering into a Minute of Agreement, you could save yourself hassle further down the line and be permitted to take your child abroad for a certain number of days or weeks per year. The terms of this (for example, that any holiday is not to take place during school term-time and only during school holidays) can be negotiated with the other parent. We would be happy to assist with this.
What if my child’s father or mother do not consent or I do not talk to them anymore?
If your child’s other parent is not in agreement with any proposed holiday, or you no longer have any contact with them to ask, you can apply to the Court for a “Specific Issue Order” permitting you to travel without their consent. If this is required, it is important that you consult a solicitor at the earliest opportunity, ideally prior to booking, to avoid any potential disruption to your holiday plans and the inevitable disappointment and financial loss that would come with it. If you wait until a week or two before your holiday to check whether the other parent has any objection, it may be too late. While it is not impossible to obtain a Specific Issue Order on a fairly urgent basis, the risk of you not receiving the required permission in time becomes considerably higher the closer it is to your date of travel. It is better to act now to give yourself the peace of mind so that you can relax and enjoy your future holidays.
For more information or advice on any matters related to parental rights and responsibilities, please do not hesitate to get in touch with our family law team. We would be happy to help.
Email Eilidh Campbell
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