Do I need to get my ex-partner's consent to take our child on holiday?

I was asked this question by a friend the other day. As a solicitor, I find I get asked legal questions by family and friends fairly regularly. Bizarrely, someone once asked me if he could fence off a piece of seemingly unused land and claim it as his own, which I had to admit, wasn’t really my area of expertise!

From working in family law, I’ve come across a lot of cases where a parent is having difficulty getting their ex-wife/ex-husband to agree to let their child go on holiday with them.

Say for example, you are due to take your child on holiday in a few weeks’ time and the mother/father of your child keeps changing their mind as to whether they did or did not agree to the holiday. You’re worried that the holiday will come around and your ex-wife/husband won’t let the child out of the door, resulting in a wasted cost of a holiday and a disappointed child.

What are your rights and what can you do?

Every person with parental responsibility for a child has to give consent for the child to be taken out of the country. This means that unless there is a Residence Order or Child Arrangements ‘living with’ Order in favour of the parent proposing the holiday, the other parent can refuse to let the child go. This would leave the holiday making parent technically at the risk of being charged with child abduction if they insisted on taking them, or indeed being left stranded at border control at the airport.

The uncooperative parent can however apply to the court for a Prohibited Steps Order, which can prevent the other parent from removing the child from the country.

Firstly, you should write to the mother/father of your child in a formal letter, enclosing a detailed form of consent for her to sign and return. You should also enclose full details of the holiday, including flight times, destination address and contact details for when you are away.

If this is objected to, I would advise that you consider an application to the court for a Specific Issue Order. If the holiday is fast approaching, you will need to do this as quickly as possible, whilst asking the court to hear the case on a matter of urgency. In some circumstances it might be possible to make a referral to an independent family mediator but, in this instance, the matter may be too urgent to contemplate any possible delay.

In an application for a Specific Issue Order the court will assess whether it is in the child’s best interests to go on the proposed holiday. A Judge is likely to want to know the full details of the holiday, including the purpose for it. The Judge may also check whether or not the country intended for the holiday is part of the Hague Convention on Child Abduction. If it is, this could help avoid possible problems with the return of a child following alleged child abduction, and a Specific Issue Order is more likely to be granted.

In an ideal world, all of these arrangements will be discussed and agreed upon in good time for the fast-approaching summer holidays. It helps neither the parents nor the children for there to be stress, anxiety and arguments over what is supposed to be a happy time.

There are a number of ways in which you can try and resolve your differences and ease your worries. You can speak to one of our family solicitors for advice about either the court process or reaching a mutual agreement; or to one of our family mediators if you think that your issue is more suited to mediation.

Please call our Family Law team on 0113 201 4902 or email family.law@emsleys.co.uk.