What happens where parents are separated, and your former partner/spouse will not agree to you taking your child out of the country? At this time of the year when many people want to book their summer holidays this can become quite the dilemma, and also when you have family that you want to see who live abroad.

First of all, you need to know who has parental responsibility for the child? A child’s biological mother automatically has parental responsibility. A father can acquire parental responsibility, either by being named on the child’s birth certificate, by being married to the child’s mother at the date upon which the child was born, via a parental responsibility agreement or by an order of the court.

If you seek to take your child outside of England and Wales, then you need the consent of everyone who shares parental responsibility for that child unless you have a child arrangement order, to say that your child lives with you.

If you have an order that says that your child resides with you, then you should be able to take the child out of the country for up to 28 days. However, you should ensure that the holiday does not affect the time that the child spends with the other parent. When there is an order stating the time that your child spends with the ‘non-resident’ parent, you should ensure you seek their agreement to vary the arrangement temporarily, otherwise you are in breach of the order.

So, what should I do if I do not have an order and the other parent will not agree? 

1. Talk to them

It is always better, whenever reasonably possible, if parents can discuss matters relating to their child directly. Ask them why they are unable to agree to your request to take the trip in case there is something that can easily be resolved. If speaking to your former partner/spouse alone is likely to be ineffective, you could consider mediating with them. This creates an amicable and less hostile environment for the child. It is also the quicker and cheaper option of them all!

2. Negotiation via solicitors

If you feel uncomfortable engaging in mediation, or if mediation is ineffective, then you could instruct a solicitor to write to your former partner/spouse with a view to reaching an agreement through these means.

For example, you could offer safeguards, such as arranging regular telephone or Facetime contact whilst you are away or by providing the other parent with the travel and accommodation details. This may help the other parent feel more at ease with the proposed holiday.

3. Application to court

If none of the above options are successful, then you will likely be left with no alternative other than to make an application to the court. The court will consider whether you should be allowed to temporarily remove your child from the jurisdiction (England and Wales) for the purposes of the holiday and will consider the welfare checklist in making this decision:

·        The ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding)

·        The child’s physical, emotional and educational needs

·        The likely effect on the child of any change in their circumstances

·        The child’s age, sex, background and any other characteristics which the court considers relevant

·        Any harm which the child has suffered or is at risk of suffering

·        How capable each of the parents are, and any other person in relation to whom the court considers the question to be relevant, of meeting the child’s needs

·        The range of powers available to the court under this Act in the proceedings in question. 

If your partner/former spouse is concerned that you will not return the child at the end of the trip, the court will consider the safeguards that can be put in place. It is important that you access legal advice at the earliest opportunity so that consideration can be given to the particular safeguards (to ensure that the child is returned), relevant to the country that you would like your child to visit. Consideration will be given as to whether the country has signed up to the Hague convention, whereby a reciprocal agreement is in place to prevent a child being retained in a foreign country.

Finally, don’t leave it until the last minute! You do not want to end up in a situation where you have paid thousands of pounds for a holiday, to find that your former partner/spouse will not consent to you taking your child, then leaving you insufficient time to seek permission from the court.

If you need legal advice around taking a child on holiday outside of the jurisdiction, then you can search for a lawyer who specialises in child and family law on our site search4legal.co.uk. You might also be interested in reading some of our other legal guidance blogs, such as "Can I get Legal Aid for a Divorce or Family Matter?".