Summer is approaching and with that, the long school holiday. It’s the time of year which should be your chance to get a change of scenery and make lots of memories together. However, if you have been through a separation, we understand it isn’t always that easy. Organising a family holiday can be complicated but we are here to help ensure you and your children have the best summer possible.

As well as packing the usual beachwear, sun cream and passports (do check they are still valid and have the required time left on them!), it could be necessary to take a little extra paperwork along for those people whose surname is different to their child’s.

A different surname might arise for a host of reasons, such as a divorce and subsequent name change, keeping a maiden name on marriage or re-marriage, or having a child with a double-barrelled surname.

If a child, who is coming on holiday with an adult, does have a different surname, it’s important to be aware of the pitfalls of not having sufficient paperwork to show that the child is perfectly entitled to be on holiday with that person.

What is the law around taking your child on holiday when separated?

If you and your ex have already gone through court proceedings and there is a Child Arrangements Order in place this may deal with holidays. You should always refer back to and comply with any court order, otherwise, you will be in contempt of court and the other parent can make an application to the court for breaching the order.

What is a Child Arrangements Order?

A Child Arrangements Order (CAO) is an agreement concerning where a child lives and who a child can have contact with. CAOs are usually sought following the breakdown of a relationship and replace contact orders and residence orders.

What if I do not have a CAO?

If you don’t have a child arrangements order and want to go on holiday abroad with your children then you will need the permission of anyone with parental responsibility. If possible, we recommend getting the other parent’s permission in writing, such as by email or text. This means you can refer back to it if they try to change their mind about the holiday later.

If your ex won’t agree to the holiday and you still want to go, you will need to make an application to the court for permission. The court will be able to make an order granting you permission to go on holiday or give you a reason as to why you aren’t allowed. Again, you must follow any court order made.

Going without the knowledge or permission of the other parent, either by consent or court order can mean that they can accuse you of child abduction, which is a criminal offence. The police can become involved and this could have long-term repercussions.

What is parental responsibility?

Parental Responsibility (PR) is legally defined in section 3 of the Children Act 1989 and means

all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

A person with PR for a child can make decisions about things such as where the child lives, what medical treatment they receive, or where they go to school, amongst other things. You might have PR because you are a biological parent of a child, or you might be granted PR and not be a biological parent (for example, you might be a grandparent), depending on the situation.

Automatic PR

A biological mother will automatically have PR for a child. For fathers, it can be a little more complicated but if the father was married to the mother at the time of the child’s birth, he will automatically have PR.

Non-automatic PR

If the parents are not married, the father will have to acquire PR. He can do this by:

  • Being named on the child’s birth certificate (which will require the consent of the mother);
  • Marrying the biological mother at a later date as he will then be treated in the same way as if they had been married at the time of the child’s birth;
  • He enters a PR agreement with the biological mother which is then filed at the Central Family Court;
  • He makes an application to the court for PR and this is granted;
  • He is named in a Child Arrangements order as the person who the child lives with (because in making such an order, the court would have to make PR order in the father’s favour at the same time);
  • He is named in a Child Arrangements order as someone the child has contact with and it is appropriate for a PR order to also be made;

People, including fathers, can also gain PR because they are made a child’s guardian or they adopt a child.

Are there any exceptions?

Consent is not legally required by the other parent if the holiday is for less than 28 days and a Child Arrangements Court order is already in place to confirm the child lives with the parent taking them on holiday, but it is always better to have consent, rather than run the risk.

How do I obtain consent from the other parent?

When trying to get the permission of the other parent, it’s best to provide a clear plan with all the necessary details of your holiday plans and answer any questions they might have. Think about what you want to do, where you want to go and how long for. They may also wish to know if you will you be taking anyone with you such as a new partner. If so, do they like them or will that make it difficult to get them to agree to the holiday? It is also a good idea to support communication between your ex and children while you are away so that they don’t feel isolated.

It is best to give your ex all the information you can because if you have to make an application to the court, they would expect to know all the details about your holiday anyway. Key information will be your travel details, such as travel dates, flight numbers, hotel booking details, and whether there is any relevant medical information needed, such as injections.

What evidence and documents do I need to show the other parent’s consent?

As well as the child’s passport, taking a paper trail to prove who their parents are is vital.

This includes:

  • The child’s birth certificate and the parent’s
  • A divorce or marriage certificate, if you are a single parent but your family name is different from the child’s.
  • If you changed your surname upon divorce, the change of name deed and a copy of the final order (old decree nisi)
  • Bringing along an expired passport, which proves the name change could also be helpful.
  • You will need to obtain written consent from the other parent or anyone who has parental responsibility for the child is another wise move. A properly drawn up consent form is ideal, or if that’s not possible, a letter from the other parent, confirming their full contact details, that they are the parent of the child and that they have given consent for the holiday, along with their signature, should suffice.

Having an awareness of the questions that might be asked at the immigration desk is important, as it allows a level of preparation between parent and child. They might be asked about the identity of the other parent, for example, or you might be asked for the letter.

What happens if the other person with parental responsibility does not provide their consent?

You’ll need to apply to a court for permission to take a child abroad if you haven’t got permission from the other people with parental responsibility. This is called a ‘temporary leave to remove,’ which is a type of Specific Issue order. The court will review the application and a hearing will be listed to deal with it. You must give details of the trip, e.g. the date of departure, when and how you’re returning, and contact details of people with parental responsibility staying in the UK. You and your ex will attend the hearing and at the end, the court will determine whether or not you can take your children away. If it agrees, you will get a court order confirming that. Your ex cannot prevent you from going if you have a court order and cannot accuse you of child abduction at a later date.

It is important to note that the court might not consider the actual dates of your holiday and will not necessarily consider your application urgent. The courts are very busy at the moment and so it can take a little while for a hearing date to be booked in. For this reason, if you want to go away this summer it’s best to try and agree with your ex soon and then if that doesn’t work, you can make an application to the court to ensure you get a get a hearing date as soon as possible.

It is important that despite separating, you and your ex are able to move forward and that your children still get to spend quality, fun time with you. The summer holidays are the perfect chance for that and so if you need any help our team are on hand to help.

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Helen and Emily specialise in family law, offering sensitive guidance through complex relationship breakdowns. Helen, with over twenty years of experience, excels in cases involving substantial wealth, family businesses, trusts, and farms, and advises on complex children cases, including international relocation. Emily, set to qualify as a family solicitor in August, handles pre and post-nuptial agreements, high net worth disputes and child arrangements.

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Published: 10th June 2024
Area: Family

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