Yesterday I wrote about the case Re R (Children: Temporary Leave To Remove From Jurisdiction), which concerned an application by the mother for permission to take the four children of the family on holiday to India for two weeks during the Easter school holidays. In the course of that post I didn’t really explain the law on the subject of temporary removal of children from this country. What, then, is the legal position where the parents have separated and one wants to take the children abroad on holiday?
Essentially, the parent wanting to take the children on holiday should always seek the written consent of anyone else with parental responsibility for the children (normally the other parent). The exception to this is where the parent wanting to go on holiday has a residence order in their favour, in which case they may take the children abroad for less than one month without seeking specific consent. (The rest of this post assumes that there is no residence order, unless stated otherwise).
If the other parent will not consent, then the parent wanting to go on holiday will have to apply to a court for permission to take the children abroad. Such permission will usually be granted, provided that the court is satisfied regarding the holiday (for example that it is a genuine holiday to a reasonable destination), and that the children will be returned to this country at the end of it.
Note that taking children abroad without the consent of anyone else with parental responsibility or the permission of the court is a criminal offence, which may be punished by a fine or imprisonment.
Even if the other parent does not have parental responsibility, it is a good idea to try to agree the holiday with them beforehand, and to go to court if you can’t, otherwise they may apply to a court for an order preventing you from going, or if you have already gone, apply for an order that the children be returned.
As indicated above, the main reason why a court may not allow children to be taken abroad is where the court considers that the risk that they may not be returned to this country outweighs any benefit that the children may get from the holiday. Examples of situations where the court may take this view are where the parent wanting to take the children abroad has family or other connections in the destination country (as in Re R), or where that parent has threatened not to return the children.
Obviously, if one parent has threatened not to return the children and they have not made an application to the court for permission to take the children abroad, then the other parent should make an urgent application to the court for an order preventing removal of the children from this country. Such orders can be made even where there is a residence order in force (as again was the case in Re R).
Please note that this post is intended to give only a brief introduction to the subject. For detailed advice, you should of course consult a specialist family lawyer.