The days are getting warmer and longer, the shops are trying to sell us barbeques, bikinis and sunscreen. It can only mean one thing: the few weeks of the English summer are nearly here! Yippee! Wimbledon, Pimms and holidays are just around the corner.
So with holidays in mind, we thought a timely blog about holidaying overseas with the children if you are separated might be useful.
If you want to take a child out of the jurisdiction of the Family Court (i.e. England and Wales) for a holiday (including to Scotland!), then you will need the consent of anyone who has parental responsibility (PR) for that child or those children. As our regular readers will know, PR covers the legal rights, duties, powers, responsibilities and authority a parent has for a child and their property. Someone who has PR for a child has the right to make decisions about their care and upbringing, and important decisions in the child’s life must be agreed by all those who have PR, or by the court in the absence of agreement. Biological mothers and opposite-sex parents who are married at the time of the child’s birth automatically have PR. Biological fathers who were married to the mother at the time the child was born have it, as do unmarried fathers who are named on the birth certificate of children born after 1 December 2003. Provisions are more complicated for same-sex couples but in many cases both parents will have PR; if this applies to you, you should check your position with a family lawyer. If you do not have PR in relation to a child, it has to be obtained by agreement with the birth mother, or by court order.
The only exception to the need for consent from PR holders is when there is a Child Arrangements Order specifying where a child lives (in old parlance: a residence order). In those cases, the person who has the order stating that the child lives with them can take the child abroad for a period of up to 28 days without having to get permission from other PR holders. That would cover the standard week or two in the sun over the summer, if you have an order saying your child has their main home with you.
If you are planning a foreign trip, and are in the situation of needing consent from the other parent, or anyone else, then plan ahead and try to get the consent and agreements in place as early as possible. The last thing you need when debating whether you will need factor 30 or factor 50 sunscreen, is to be faced with going to court in order to get permission to take your children with you on holiday.
If consent is not forthcoming, then this is the sort of dispute which can be easily sorted out in mediation, or using collaborative law. If that is not an option, or doesn’t work, then an application to the Family Court for permission (“leave”) to remove the child for the purposes of a holiday is the only way to get approval.
When deciding whether to give permission, the court will consider the country you are intending to visit, your plans whilst you are there, and the safeguards which can be put in place to ensure a safe and prompt return of the children to this jurisdiction. Where insufficient safeguards can be put in place, for example if the country you intend to visit is not a signatory to international conventions dealing with return of abducted children, then permission may be refused. Decisions are always made based on what the court considers is in the child’s best interests.
In a recent case, the judge had to consider an application to take a child to Turkey. The father, who like the mother was originally from Iran, objected as he thought the mother might flee across the border into Iran with the child. Interestingly, the same family had featured in an earlier case where the mother wanted to take the child to Iran for a holiday and to meet wider family there. She was initially granted permission, but the father appealed to the Court of Appeal and was successful in having that permission overturned. This was on the basis that his political activities in Iran (before he was granted political asylum here) meant that the risks to the child and mother from the authorities there were too great, as well as FCO guidance warning against all but essential travel to Iran.
Turkey, however, is a different kettle of fish. It is a signatory to the Hague Convention, and in this case the mother was able to offer safeguards to ensure her and the child’s return to this country. These included swearing undertakings to return, and lodging important documents (the child’s birth certificate and the mother’s) with her solicitors whilst she was abroad, thus giving her an incentive to return. On this basis, she was granted permission to take her daughter to Turkey for a two week holiday.
In essence, permission will be forthcoming from courts for sensible trips to safe countries, and you therefore really only need to ensure you have consent from the other PR holders in good time before jetting off. Common sense suggests giving them full travel details, and contact numbers whilst you are abroad.
If you would like to discuss taking children abroad or any other aspect of family law, you can make an appointment with Simon, Gail, Adam, Sue or Tricia on 01223 443333.