Taking children on holiday6.07.2010
As the summer holidays approach, parents will no doubt be turning their mind to holidays abroad. For many of us this means simply deciding where to go but for those who are separated or divorced this decision can be fraught with legal and emotional complications, particularly bearing in mind that taking a child out of the country without the necessary permissions is a criminal offence.
Where the Court has already granted a Residence Order stating who the child is to live with, permission for a holiday abroad will need to be obtained from all those with parental responsibility. Parental responsibility is best defined as the rights, duties, responsibilities and decisions a party would make every day in respect of the children, but which are taken for granted. A mother will automatically have parental responsibility for her children as will the father if he was married to the mother at the time of the child’s birth or subsequently marries the mother. In some cases a father obtained parental responsibility by having his name put on the child’s birth certificate or he can obtain this by agreement or Court Order.
A person with parental responsibility and a Residence Order can take a child out of the country for up to a month without obtaining consent.
The need to obtain consent can often cause great friction and so a court order may be necessary to enable you to take your children on holiday abroad. In considering such an application the Court will be required to consider the following which apply to all applications in respect of children, keeping the child’s welfare as the paramount consideration:
- The ascertainable wishes and feelings of the child (taking into account his or her age and understanding),
- The child’s physical, emotional and educational needs,
- The likely effect on the child,
- The child’s age, sex, background and any characteristics of the child which the court considers relevant,
- Any harm that the child has suffered or is at risk of suffering, and
- How capable each of the child’s parents are in meeting the child’s needs.
Whilst it is always preferable for parents to reach an amicable agreement, Court Orders are sometimes necessary and can be obtained at very short notice if required.
At Gullands we have been asked on many occasions to seek emergency Court Orders for a parent due to take children away on holiday. If you would like more information please contact Melissa Markham in our family department by email: [email protected].