What happens where parents are separated and your former partner/spouse will not agree to you taking your child out of the country?
The first question to ask, is 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 the jurisdiction (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 can take the child out of the country for up to 28 days. Be warned, you should ensure that the holiday does not affect the time that the child spends with the other parent. If you have an order stating the time that your child spends with the ‘non-resident’ parent, then you should seek their agreement to vary the arrangement temporarily, otherwise you are in breach of the order.
So, what if I do not have an order and the other parent will not agree?
1. Talk to them
It is always better, where possible, where the parents can discuss matters relating to their child directly. Find out what it is that is preventing your former partner/spouse from agreeing to the trip. 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 do not feel comfortable engaging in mediation, or 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 allowing 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 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 his age and understanding)
His physical, emotional and educational needs
The likely effect on him of any change in his circumstances
His age, sex, background and any characteristics of his which the court considers relevant
Any harm which he has suffered or is at risk of suffering
How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his 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 to 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.