Henry Hood and Nicole Derham discuss what separated parents should be aware of when taking their children abroad on holiday in The Times

This article was originally published in The Times and can be accessed here. 

Can I take my child abroad on holiday if the other parent doesn’t agree?

Separated parents taking different perspectives on the risks of international travel this summer may find themselves facing a legal nightmare.

Assessing the risks posed by new variants, interpreting government guidance on amber countries, and weighing up whether it’s worth isolating on return may leave some separated parents disagreeing on whether their child should travel abroad this summer. Those who can’t find consensus may have no choice but to stay in the UK, as in most cases taking a child abroad without the other parent’s agreement or the court’s permission will amount to the crime of child abduction.

This gives many parents a veto on foreign holidays, and whilst the courts disapprove of this power being exercised unreasonably, the current uncertainty around the safety of foreign travel means it may be difficult to say a parent opposing foreign travel is being unreasonable.

In some cases, a parent can take children abroad without the other parent’s agreement. If a parent does not legally have parental responsibility for a child (which may arise, for example, where the father is not on the child’s birth certificate) their agreement is not needed to take the child abroad. Additionally, where the court has ordered that a child lives with a parent, that parent can take the child abroad for up to a month without the agreement of the other. They should, however, still give reasonable notice of the trip to the other parent.

If agreement can’t be reached, the matter can be taken to court; this can be expensive and should generally be the last resort. A judge will decide if the foreign holiday should go ahead based on the child’s best interests. In these unprecedented times the outcome may be difficult to predict, and whilst, for example, a trip to visit family is more likely to be considered appropriate than a simple holiday, much will depend on the circumstances.

Alternatives to court exist: parents can negotiate through specialist family lawyers; attempt mediation, where a mediator facilitates discussion and suggests potential solutions; or seek a neutral evaluation from a barrister on the court’s likely approach. None of these routes, however, guarantees resolution.

Arbitration is an additional option where the holiday destination is a member of the 1980 Hague Convention on Child Abduction. It offers the finality of court proceedings but with added speed and flexibility: an experienced lawyer is jointly appointed to make a binding decision which can be made into a court order.

If agreement is reached or permission given, it is important to take a copy of the court order or the other parent’s written agreement when travelling – failing to do so can cause problems at borders, potentially ruining a much-anticipated holiday.