What are the rules on travelling abroad with children when you are divorced or separated?

With the summer holidays approaching, Helen Waite in our family team answers questions for The Times of Tunbridge Wells about holidays abroad when you are divorced or separated.

I’ve booked a holiday later this year; do I need to tell my former partner where we are going?

If your former partner has parental responsibility, then unless there is an old style residence order (in your favour), or a ‘lives with’ order ’in place, you can’t take the children aboard or out of the jurisdiction of England and Wales without his/her consent. If there is a residence order or lives with order in place then you can take the children abroad without the other parent’s consent for up to 28 days. Without it you would always need their consent or an order of the court. You should also (because they have parental responsibility) provide details of where you are going, including flights and travel itinerary and contact details for whilst you are away. It is sensible to get their consent to you travelling abroad in writing so there can be no misunderstandings. Some countries will ask for written evidence, if only one parent is travelling with the child and some require formal affidavits. It’s always better to check the countries specific requirements in plenty of time, so there are no surprises at the airport.

My former partner has refused to provide consent to me taking the children abroad. The holiday is already booked and the children are very much looking forward to it. What can I do?

If the other parent will not provide their consent, you can make an application to the court for a specific issue order. A judge can order that you are able to take the children to a specific destination by overriding the other parent. In most cases, unless the intended journey is going to place the children at risk of harm or is very disruptive to the time the children spend with the other parent, a court is unlikely to refuse a holiday which is in most cases in the best interests of the children. For that reason it is usually the case that the threat of such an application would cause the other parent to consider things more reasonably. This is written with the caveat that every case is based on the specific facts of the case.

What if I simply want to take the children on holiday in England or Wales, can the other parent stop me?

Providing the children are due to be with you at that time and there isn’t a court order in place stating that the children should be with the other parent then you can take them on holiday within England or Wales. The only difficulty would be if the other parent considered the trip to be likely to pose a risk of harm in some way to the children or not in their best interests, they could threaten to make an application to the court, but they would have to have a very good reason. You certainly wouldn’t need their permission in the way you would to go abroad. It is always good practice to give notice and details of where the children will be in advance. Any other person with parental responsibility should know where their children are staying if not at home, unless there is a justified reason for them not to know.