Following publication of the government’s roadmap for easing of lockdown, many travel firms report a surge in bookings for travelling abroad. On top of the insecurity potential infection rises can bring, many families also have the added insecurity of making decisions with separated co-parents.
Senior Associate, Francesca Easter, discusses what steps can you take to ensure you are compliant with your custody arrangements and have peace of mind that your ex-partner won’t scupper your holiday plans.
As a separated parent, how can I ensure taking my children abroad complies with any custody arrangement I have?
If both parents have parental responsibility for children, and there are no Court orders in place, then neither parent is allowed to take the children out of the UK without the written consent of the other parent. However, if you already have a Child Arrangements order in place, then the position is different.
If you already have a “Live With” order (previously called a residence order), saying that the children live with you, then you can take the children abroad for up to 28 days without the other parent’s permission. If you do not already have a Court Order stating that you can take the children abroad, then you either need to ensure you have the written consent of the other parent, or apply to the Court for permission.
What happens if the other parent refuses to let this happen, despite taking my children abroad themselves?
This does depend upon whether or not there is a pre-existing Child Arrangements order in place. If there is, and you are the parent with the “Live With” order, then you can take the children abroad, without separate written permission of the other parent. If you either do not have a Court order in place, or if there is a Court order, however this states that you have a “Spend time with” order, and does not specify being able to take the children abroad, then you will need to make a separate application to the Court.
What happens if the other parent agrees but then changes their mind after I have paid a deposit?
If there is no Court order in place, then you will need to make an urgent application to the Court, for a Specific Issue order, which deals exclusively with the holiday arrangements.
Are there any circumstances when the other parent would be liable for costs if they stop the children coming on the agreed holiday?
Whilst a Court can always make an order against one party, if it is considered fair to do so, it is fairly unusual for a Court to make a costs order in children proceedings. A Court will usually be keen not to be seen to “punish” one parent, as it is considered to be in the best interests of the children for the separated parents to co-operate with each other regarding arrangements.
If a costs order is made by a Court, this will usually only be where the parent against whom the order is made has behaved in such an unreasonable manner during the litigation, that it would be unfair to do otherwise. However, it is important to note that the unreasonableness relates to the conduct of the litigation, rather than in relation to the welfare of the child.
How can using a solicitor help ensure compliance of custody agreements?
A family law solicitor can assist you in relation to taking children abroad, if your former partner will not provide consent. If you already have a Court order, then your solicitor can assist you in enforcing this order if the other parent is not complying with it.
It is very important to obtain legal advice at the earliest opportunity, so that all eventualities can be considered, and precautionary measures can be put into place. It is also vitally important to ensure that the correct procedure is complied with, and correct reference made to the relevant law.