At lot has been reported in the press recently about taking children out of school during term time for a holiday but what about time away during the official holiday period where parents are separated – particularly holidays abroad.
If you plan to take a child out of the courts’ jurisdiction (i.e. England and Wales) for a holiday, and that includes a trip to the beauty of Scotland, then you need the agreement of all those people who hold or share parental responsibility for the child.
Parental Responsibility is defined as ‘all the rights, duties, powers, responsibilities and authority which, by law, a parent has in relation to a child and his property’. While the law does not explain in detail what this means, in practice it includes such things as protecting and maintaining the child, choosing and providing for the child's education, determining the religion of the child, agreeing to the child's medical treatment and naming the child and agreeing to any change of the child's name. A mother automatically has parental responsibility for her child from birth.
In England and Wales, if the parents of a child are married to each other at the time of the birth, or if they have jointly adopted a child, then they both have parental responsibility. Parents do not lose parental responsibility if they divorce.
Under current law, a mother always has parental responsibility for her child. A father, however, has this responsibility only if he is married to the mother when the child is born or has acquired legal responsibility for his child through one of these routes:
•(since 1 December 2003) by jointly registering the birth of the child with the mother
•by a parental responsibility agreement with the mother
•by a parental responsibility order, made by a court
•by marrying the mother of the child
Living with the mother, even for a long time, does not give a father parental responsibility. If the parents are not married, parental responsibility does not automatically pass to the natural father if the mother dies - unless he already has parental responsibility.
The position is different for same sex couples where in many cases both parents will have Parental Responsibility, but this should be checked with one of our family lawyers.
If there is a formal Child Arrangement order for the child in place which specifies with which parent the child is to live, that parent can take the child abroad, even to Scotland, for up to 28 days without the need for permission from any other PR holders. Remember however this is only where you have an order that says the child has their main home with you.
If you are hoping to take your children abroad make sure you have all the necessary consents, ideally confirmed in writing in place well before you plan to go. If this consent is not given then you need to give time either to resolve matters via mediation or by means of an application to the court for permission (“leave”) to go.
If the court is to give leave it will want to have full details of when, where and how .It will want to be satisfied that the child will be safe (not a simple issue in these troubled times) and that there is no risk of abduction.
Leave will usually be given for normal holiday trips to safe countries, but try to avoid having to go down the court route. Ask for permission in plenty of time, give full travel and accommodation details and provide all necessary contact details.
Safe travel and happy holidays.
At John Hodge Solicitors, our Family Team has over 70 years combined experience in guiding people through separation and in relation to disputes over child arrangements.
Our Family Team offer an initial free consultation, therefore, if you require our advice and assistance please do not hesitate to contact us.