Summer holiday planning for divorced or separated parents
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Amanda Masson is a partner and head of Harper Macleod’s family law team
It is approaching that time of year when people start to turn their thoughts to summer holidays. Where parents are divorced or living separately, making arrangements for a holiday abroad with their children can be challenging. It is beneficial that planning is undertaken at the earliest stage, to avoid any legal issues prior to proposed travel. One of the main issues family solicitors encounter when discussing holiday travel with clients, is the question of consent.
What does the law say?
The Children (Scotland) Act 1995 is the relevant legislation. The part that deals with the need for consent, is found within Section 2 of the 1995 Act. Essentially, Section 2 provides that no parent shall remove a child habitually resident in Scotland from, or to retain any such child outwith, the UK without the consent of the other parent who has parental responsibilities and rights. In Scots Law therefore, consent is required by all of those people holding parental responsibilities and rights, to allow for a child to travel abroad for a holiday.
Is there a need for written consent?
In short, no, written consent is not required. Verbal consent is as legally binding as written consent. However it is advisable to have some form of written consent in order for the travelling party to show that consent has been provided.
What if consent isn’t given or is withdrawn nearer the time of travel?
If consent is refused or withdrawn by the person holding parental rights and responsibilities, a Court order may be applied for. If the only issue in question is consent to travel for a holiday, the party who is looking to travel may apply to the Courts for a ‘specific issue order’, which is a type of Order that deals with a specific issue that is before the Courts. Prior to making a Court order, the Court needs to have regard to the overarching principles, namely:
1. The court must regard the welfare of the child as its paramount consideration (the “necessity” principle)
2. The court is prevented from making an order unless it would be better for the child that the order be made than that none should be made at all (the “minimum intervention” principle)
3. The court must, so far as is practicable, give the child an opportunity to indicate whether he or she wishes to express views and if so to give an opportunity to express them
When assessing welfare, the Court will consider a number of factors including the age of the child, the duration of the holiday, the destination of travel, any specific health needs the child may have and whether they can be met while the child is away from home and, provision for contact with a caregiver who remains in the UK.
Can I prevent my child from being taken on holiday abroad?
If a person holding PRRs refuses to consent, and is concerned that their child may be taken abroad regardless, that person may apply to the Court for an order preventing the child being removed from their care, or from Scotland, without their express permission or consent or without a Court Order. This is called an order for Interdict and can be granted on a temporary (interim) basis. It can also be granted on an emergency basis where necessary but it is important to act quickly in those circumstances. The Interdict, or interim interdict, will remain in force until it is amended or cancelled by the Court.
Please contact us if you would like to talk to a family law expert about this matter
