A common question we get asked as family lawyers is whether a parent or a child’s carer is allowed to take a child on holiday without permission. The purpose of this article is to provide some guidance on this issue.
The first issue that you need to consider is whether you have Parental Responsibility for the child in your care.
Parental Responsibility (PR) is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In practical terms this means any issues in relation to Health, Education, Religion, Discipline, Change of Name, Removal from the Jurisdiction and where the child will live.
A child’s mother will always have PR by virtue of giving birth to the child.
A child’s father will share PR in one of the following ways:
- He is married to the child’s mother
- He is jointly registered on the child’s birth certificate for a child born on or after 1 December 2003
- He enters into a PR agreement with the child’s mother
- He obtains a PR order from the court
Same sex partners will share PR if they were civil partners at the time of any treatment. The partner without PR may attain it by either:
- Applying for PR
- Entering into a civil partnerships and PR agreement or jointly registering the birth
Other parties may also share PR for a child namely:
- A person who has a Child Arrangements Order which states the child is to live with them. Child Arrangements Orders came into force on 22 April 2014 and replaced Residence Orders. Any Residence Orders made prior to 22 April 2014 should now be considered to be a Child Arrangements Order
- A person who has a Special Guardianship Order
- A party who has a Care Order
- A person who has adopted a child
If you do not have PR for the child then you require the permission of any party with PR or you will need to make a court application. You are, however, permitted under the law to do all that is reasonable to safeguard or promote the child’s welfare.
If you have PR, you then need to establish whether anyone else shares this with you. If there is no-one else with PR there is no restriction on you when taking your child on holiday.
If another party shares PR then you may still be able to take the child on holiday without permission in the following instances:
- If you have a Child Arrangements Order as detailed above then you can take the child on holiday for up to 28 days without needing permission
- If you have a Special Guardianship Order you can take the child on holiday for up to 3 months without needing permission
- If you have adopted a child then you have the sole PR for that child and there are no restrictions on you in relation to holidays
If none of the above apply and another party shares PR with you then you will require their consent prior to taking your child on holiday. If you do not then you could be considered to have abducted the child and this could have serious consequences for you.
In terms of consent, a letter from the other party confirming their agreement is usually sufficient and you should keep this with your travel documents as you may be asked for it by the relevant authorities. If the child has a different surname to you then it may also be sensible to obtain a copy of the other party’s passport.
If the other party does not agree then you can make a court application.
It is important to bear in mind that prior to making a court application you need to have attended a Mediation Information and Assessment Meeting (MIAM) and the mediator has confirmed that mediation is not suitable in your case. There are some exemptions to this requirement which will be identified to you at the time of your enquiry.
If mediation is not appropriate you can proceed with your application. This will usually be for a Specific Issue Order. If however, the child lives with you full time then you may instead consider applying for a Child Arrangements Order confirming the child lives with you. This may be more appropriate if you are continually facing difficulties in agreeing holidays or the other party cannot be located for whatever reason. If you do not have PR for the child then you will firstly need the court’s permission to make your application.
You will be asked by the court for provide full details of the proposed trip including the location, duration, any safeguarding measures that need to be in place for the child and your reasonable proposals for contact between the child and other party. The court will then make a decision based primarily on the welfare of your child and applying various factors, known as the Welfare Checklist. Further advice on the court process can be provided as and when required by a solicitor or the court.
In conclusion, if another party’s permission is required then it is advisable to make them aware of your proposals. If no agreement can be reached then contact your local mediation service and make a relevant court application of mediation is deemed not to be appropriate.
Even if a party does not share PR with you and there is no dispute in relation to their parentage then any proposed holidays should be discussed with them. This will promote effective co-parenting which will ultimately be in the best interests of the child.
You should always take independent legal advice if you are unsure about the next steps or there are particular circumstances in which you need specific advice.