Holidaying abroad or considering a permanent move?

The sun is shining and many of us are looking forward to the summer holidays. Whether you are dreaming of palm trees and white sands or have your heart set on exploring a new European city, turning your plans into reality can bring with it many challenges, particularly for separated families.

Aside from the obvious financial implications of wanting to take your children on holiday, there is often the difficult task of agreeing the arrangements for the children during the summer holidays with the other parent. One of the biggest problems facing separated parents can arise when one parent wishes to take the children abroad on holiday and the other parent does not agree.

Sometimes, after the breakdown of a relationship, one parent may feel they need more than simply a holiday but perhaps a permanent change of scenery is in order. At this pivotal time in a person’s life, people often consider moving abroad and starting afresh. Sadly, for separated families with children, making plans to relocate can sometimes be difficult.

In order to take a child out of the jurisdiction, either for a holiday or on a permanent basis to relocate, you must have the consent of everyone who has Parental Responsibility for that child.

Parental Responsibility is the legal term used to describe all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his or her property. This essentially means a parent with Parental Responsibility can make decisions in relation to things such as the child’s welfare, accommodation, education, healthcare, etc. Not all unmarried parents automatically have Parental Responsibility. It is therefore important to understand your position as it could affect the involvement you have in the decisions made in relation to your children.

Unfortunately, without consent from everyone with Parental Responsibility you cannot unilaterally remove a child from the jurisdiction of England and Wales, even on a temporary basis for a holiday. If you do so without consent, this is considered child abduction which can have far-reaching consequences. If you are the parent left-behind in this situation, you should take immediate legal advice and it is likely that an urgent application would need to be made to the High Court for the immediate return of the children. Having acted in this way, it is then often more difficult for the parent wishing to relocate abroad, or to take the children abroad for a holiday to successfully obtain permission from the Court to do so as they may be considered to have already acted in a way that is contrary to the welfare of the children.

The only exception to this is if you have a Child Arrangement Order stating that the child lives with you (or previously a Residence Order in your favour) then you are able to take a child out of the jurisdiction for up to one month without the consent of the other parent, (unless this has been excluded as part of the court order). Even in this situation, you would be well-advised to provide the other parent with full details of your plans for travel, as well as emergency contact information.

If you do not have the consent of everyone with Parental Responsibility then you will need to make an application to the court for permission to relocate with your children. If you are the parent wishing to move, you will need to be able to substantiate your reasons for wanting to move and you will need to demonstrate detailed plans for your new life. Often, where one parent was born abroad, they may be looking to return home to a support network of family and friends and making a case on this basis can be more straightforward as you are hoping to return to a place that is familiar, as opposed to moving somewhere completely new. However, in any case, as part of your application to the court you will need to provide detailed information such as where you intend to live, where the children will go to school, where the local doctors and hospitals are, as well as your detailed proposals for the children to have contact with the parent left behind. This is simply an example of the type of plans that you will need to have in place but by no means is this an exhaustive list.

Timing is crucial

The importance of seeking early advice from a solicitor with experience in the law relating to international travel and relocation with children cannot be underestimated.

If you are the parent hoping for a holiday this summer and do not have the required consent from the other parent or if you have booked and planned a trip abroad with the children but you have subsequently found that the other parent has changed their mind, you will need to make an urgent application to the court to determine whether your trip can go ahead.

There are various steps you can take in order to try to reassure the other parent that you intend to return with the children and certain steps the court can ask you to take if they agree to the holiday going ahead. For example, you may be asked to provide copies of your return tickets, or in some more extreme cases, you may be asked to pay money into the court by way of a guarantee, so that, in the event of you not returning, the left-behind parent would have a pot of money from which to mount a legal case to secure the children’s return.

It is crucial that you seek early advice, particularly in a situation where you do not expect consent to be forthcoming from the other parent as these applications to the court for permanent removal can be lengthy and may affect the timings of any proposal you have, including if you plan to start a new job abroad and enrol the children in a new school.

Timing is equally sensitive if you believe that the other parent of your children may have plans to relocate and you are not willing to agree to such a move. In this situation, you would be well advised to seek advice in respect of taking immediate protective measures. This is usually done by way of application to the court for a Prohibited Steps Order. In order to obtain such an order, you would have to demonstrate genuine and real concerns that the other parent had intentions to relocate with the children, without your consent and that there is a real risk they may simply up and go. An application for a Prohibited Steps Order is often needed to make the parent who wishes to relocate enter into the formal court procedure, as they will then be advised that they need to make a formal application to the court for permission to relocate with the children, as opposed to simply just going ahead with their plans.

Taking early legal advice is crucial to a successful application either for permission to go on holiday abroad or to relocate with the children, as well as in situations where you are seeking to oppose such steps. Our family law specialists at SA Law have extensive experience in advising in respect of holidays abroad with children, as well as international relocation, and we will be able to assist you should you require any advice.