Covid-19 – Can my ex-partner take my child abroad?
Who is entitled to be involved in the decision making about holidays?
Every person with parental responsibility (PR) for a child has the right to be involved in the decision making as to whether travelling abroad is in the child’s best interests.
A person with PR has all the rights, duties, powers, responsibilities, and authority that a parent has for a child.
Who has parental responsibility (PR) and how do I obtain it?
A mother who has given birth to a child automatically has PR for that child.
If the parents are married or in a civil partnership when the child is born, both parents will have parental responsibility.
If the parents are unmarried, a child’s father will only have PR if they are named on the child’s birth certificate, they marry or enter into a civil partnership, they enter into a PR agreement, a court awards the father PR in a court order, they are named in a child arrangement order as the parent with whom the child should live (a ‘live with order’).
Where there are two female parents, the mother who has given birth automatically has PR and the other parent can obtain PR in the same way as an unmarried father if they are not married or in a civil partnership at the time of the birth.
A step-parent can obtain PR if they are married or in a civil partnership with a parent of a child who has PR and they enter into a PR agreement with every parent who has PR or obtain a court order.
A person who adopts a child or becomes a Guardian will automatically have PR for the child.
What should I do if I do not have parental responsibility?
The first step is to contact every person with PR for the child. Try to reach an agreement with them with regard to you having PR and if an agreement can be reached you can enter into a formal parental responsibility to evidence the agreement.
If there is no agreement and if appropriate in your case, you could consider mediation with the opposing person(s) to see if an agreement can be reached.
You could consider instructing a collaborative lawyer to enable round table discussions to take place with both parties’ having a solicitor present and being able to seek legal advice whilst trying to reach an agreement on neutral ground.
If an agreement cannot be reached an application to the court will be necessary.
What if I have parental responsibility and the other person(s) with parental responsibility will not agree to me taking our child on holiday?
The first step is to try to reach an agreement directly with the other person(s) who has PR.
If you cannot agree, you could attempt mediation if appropriate in your case.
Failing the above, an application to the Court for a Specific Issue Order would be necessary.
Collaborative Law is another method of attempting to reach an agreement and would involve roundtable meetings whereby both parties have independent legal advice. You should be aware however that if this is unsuccessful you would have to instruct alternative solicitors to make an application to the court if required.
If agreement is reached or Ordered by the court what happens?
If the Court make what is called a Specific Issue Order agreeing to your travel arrangements, you will receive a Court Order that you can use as evidence that you are permitted to travel with your child.
If you are able to reach an agreement by consent it may be helpful to take to the airport evidence of the agreement in case you are questioned about the travel.
There are no prescribed rules about what you should take, but the following may be helpful:
- A signed agreement from the person(s) with PR regarding the travel together with a copy of identification from them showing their signature(s) (i.e. passport/drivers licence) and
- Evidence that you have PR (i.e. child’s birth certificate if you are named or PR agreement) – this may be helpful if you have different surnames in case there is a query about your travel
What factors does the Court take into account?
The welfare of the child is the courts primary concern. This is the fundamental and overriding principle that the court considers when considering whether a holiday is in the best interests of a child.
The court considers all the circumstances of the case including:
- The ascertainable wishes and feelings of the child concerned (considered considering their age and understanding).
- Physical, emotional, and educational needs.
- The likely affect on the child of any change is their circumstances.
- Age, sex, background, and any characteristics of the child which the court considers relevant.
- Any harm which the child has suffered or is at risk of suffering.
- How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
Where can I travel to?
It is essential to consider the Government’s guidance on where it is currently safe and not safe to travel. Each country is currently being given a red, amber, and green marker to identify where the Government feel it is currently safe or unsafe to travel. This is subject to change daily so should be checked regularly using this link, which is also subject to change - https://www.gov.uk/foreign-travel-advice.
What information should I make available to those with parental responsibility and/or the court to assist my case?
You should provide full details of the proposed travel including but not limited to:
- Who will be travelling.
- The destination – country, hotel address and contact details.
- The proposed flight or other travel details.
- How you can be contacted in an emergency.
- What contact you will provide between the child and other person(s) with parental responsibility whilst you are away.
- Whether there will be any adjustment in contact when you return (i.e you may be seeking a week’s holiday and offering a week’s holiday in return).
- Evidence of the safety of travel – current research on the location, government advice on safety of travel as set out above etc.
- Covid-19 – current evidence on the covid position in the country you wish to travel to, including any guidance on quarantining on arrival or return and how you intend to manage and pay for this.
- The reason for the travel. Due to the covid-19 situation the courts are likely to be very cautious about agreeing to non-essential travel especially in countries that have been identified by the Government as risky.
If you are at all unsure about your position you should seek independent legal advice.