Last updated on April 2nd, 2019 at 10:28 am

Many parents don’t realise that they may need the other parent’s, or the court’s, permission to take children on holiday outside of England and Wales.  Without it, they may be committing a criminal offence.

The exception is that where the court has granted a child arrangements order (formally known as a ‘live with order’ or a ‘residence’ order), stating who the child lives with, that parent doesn’t need to obtain the permission of the other parent providing the holiday is for no more than 28 days.  Where there is no order in force, parents need to obtain the permission from all those with parental responsibility.

Parental responsibility

Parental responsibility is defined in the Children Act 1989 as:

“All the rights, duties, powers, responsibilities and authority which, by law, the parent of the child has in relation to the child and his property.”

Broadly, this means that someone with parental responsibility can make decisions about a child’s upbringing and is responsible for their welfare.  But who has parental responsibility?

All mothers acquire parental responsibility automatically for their children.  Any father who is, or who has been, married to the child’s mother has parental responsibility for that child.  Equally, an unmarried father who is registered on the child’s birth certificate and who was present at the time of registration, after 1 December 2003, has parental responsibility.

Fathers can acquire parental responsibility by entering into a parental responsibility agreement with the mother, which gives the father parental responsibility for their child.  Both parents will have to agree to this.  In some cases a father can obtain parental responsibility by having his name put on the child’s birth certificate or by court order.

Permission to take children on holiday

The need to obtain consent to take children on holiday can often cause great friction, particularly where there was an acrimonious split.  Sometimes you will need a court order, known as a specific issues order.  As the children’s welfare is paramount, the court will consider the following when looking at the application for the order:

• The ascertainable wishes and feelings of the child (taking into account his or her age and understanding).
• The child’s physical, emotional and educational needs.
• The likely effect on the child.
• The child’s age, sex, background and any characteristics of the child which the court considers relevant.
• Any harm that the child has suffered or is at risk of suffering.
• How capable each of the child’s parents are in meeting the child’s needs.

Whilst it is always hoped that in such circumstances, parents adopt a child focussed approach, it is not always the case and parents may not be able to reach an amicable agreement.  In such circumstances, parents are expected to attend mediation with a view to trying to resolve things.  If not, an application to court is made.

At Graysons, we have represented many parents and assisted them in reaching a solution when going on holiday.  If you would like more information or advice, please contact us now.

Author:  Nicola Cancellara, family law solicitor