As the summer holidays approach, I am likely to see an increase in approaches from existing and new clients about how to resolve issues over holiday contact arrangements for children.
In April this year, a significant change took place with regard to the way that disputes over children issues are resolved. Amendment to the law resulted in us now making Child Arrangements Orders, sweeping away the old regime of Residence and Contact Orders. Under the previous arrangement, the parent with main care could have obtained a Residence Order perhaps with defined Contact granted to the absent parent. Now we have an Order covering the living and contact arrangements.
However, as before, the Courts do not want to make Orders concerning Children. They want parents to resolve issues themselves. As part of this there is now much greater emphasis on parents attending mediation before proceedings can even be issued. As solicitors we have an obligation to make sure all attempts have been made to resolve the issue before considering court involvement.
That being the case, what can parents do themselves to avoid having to involve solicitors at all?
The first thing is to try to ensure the lines of communication are open. It is not always easy to speak to an estranged partner, when a relationship breaks down feelings will run high but at the middle of this will be the children of the family and parents owe it to them to try to minimise the impact of the split. If the parties are finding it hard to communicate, try to find a neutral third party to pass messages, or limit contact to text or email and only about issues concerning the children. If necessary consult your solicitor before difficulties get out of hand. Avoid using the children to pass messages.
When it comes to organising the summer and other school holidays, the more notice that can be given the better. Leaving it to June/July to sort out the summer holiday contact is likely to result in arguments and expensive last minute holidays. Both parents may have childcare issues to sort out.
There is no rule about how much holiday contact should be offered. The needs of the children are paramount in all discussions about contact, for example, younger children may find it hard to be away from the parent with main care for an extended period and older children could have their own plans which should be accommodated.
What about taking the child out of the country?
If there is a Residence Order or Child Arrangement Order establishing with whom the child will live, that parent does not need to seek the permission of the other parent to take the child out of the country for up to 28 days. However, for the vast majority of cases, where there is no order, consent should be sought, but there would need to be good reasons for it to be withheld. Parents should provide each other with details, in good time, of flights and addresses whilst away.
For any holiday contact, arrangements should be made for contact with the other parent while the child is away. A brief telephone call a couple of times may suffice but it should be based around the needs of the child and be positive, focusing on how much the other parent is missing the child is only likely to leave them upset and distressed. A brief call on arrival so that the other parent knows they have arrived safely is also entirely reasonable.
The party with whom the child lives should hold the passport, but should make it available in good time to the other parent, who should return it promptly after the holiday.
If it is not possible to agree holiday contact, legal advice should be sought and mediation attempted.
Taking the children out of the country for a longer period is a very different matter and advice should be sought early on if that is a possibility.
As can be seen, whilst there are legal provisions governing the care of children after separation, the emphasis is on the parents acting in the best interests of their child and caring for the child without the involvement of the law. It is not easy, and there will inevitably be a few issues, but ultimately doing what is best for your child, and remembering that you are both responsible for the children’s welfare and happiness should help to avoid major difficulties arising.