On the Halloween theme, family associate Harriet Collins advises on "nightmare" legal issues that can arise following a divorce or separation.
Our second “Halloween nightmare” comments on the approach separated parents should consider when seeking to agree on holiday arrangements for children:
“In the run up to Christmas and with Covid restrictions continuing to ease, you book an exciting holiday abroad for you and your two children over the Christmas holiday. Whilst you are separated from the children’s father, you have already agreed what time you are each spending with the children, so other than mentioning that you may go away, you haven’t sought to agree on your holiday plans. It is now the night before you are due to fly and the children’s father says he doesn’t agree to the children going abroad. You wake up in a cold sweat…”
Luckily it was just another Halloween nightmare, but how can this scenario be avoided?
Where both parents have parental responsibility you need the consent of the other parent to take children outside of England and Wales. It is a criminal offence to remove a child from the jurisdiction without the consent of all those with parental responsibility. The only exception to this is if you already have a court order stating that you can remove the children or an order confirming the children are to live with you, which means you can take the children abroad for up to one month without consent (it is however still sensible to share the arrangements with the other parent).
A birth mother has automatic parental responsibility and a father will usually have parental responsibility if he was married to or subsequently marries the mother after the birth of the child or if he is named on the birth certificate.
Before booking a holiday and incurring any costs, you should therefore seek to agree on the arrangements with the other parent in plenty of time. You should also look to share details of your travel plans including flights and accommodation details with the other parent to ensure they are kept up to date and know where the children will be.
If you are unable to agree with one another directly, you may want to consult a solicitor or consider exploring other options such as mediation to help you both reach an agreement. If you are still unable to reach an agreement and one parent is refusing to give their consent, you can consider an application to the Court although this should be a last resort.