The summer holidays are fast approaching, and families are getting ready to find some sun! As family lawyers, we see an increase in enquiries around travelling abroad and what to do if a co-parent does not consent to a trip. I explore below the options.
I want to take my child(ren) abroad, what do I need to do?
It is sensible to have discussions early, to prevent any issues and for both co-parents to have holiday opportunities.
If you have a shared care arrangement, you will need the consent of your co-parent to take your children abroad for a holiday.
The mechanics for this will largely depend on how the arrangements for your children are agreed. If you and your co-parent communicate well and have a fluid arrangement, then you can arrange this between you. It maybe you both want to take your children abroad during the summer and the overall summer arrangements need to be discussed. However, if your arrangements are subject to a court order, you will need to review this first to see if there are any orders you need to comply with relating to holidays abroad.
Many countries will need a letter of consent from the non-travelling co-parent, which should include information such as:
- The children’s name and date of birth
- The travelling parents full name and contact information
- Travel dates and destinations
- The reason for travel
- Confirmation the non-travelling parent consents to the travel
- The non-travelling parent’s signature, the date and their contact information
The consent letter will need to be carried while travelling.
You should also discuss the following with your co-parent:
- Flight and accommodation details
- Your itinerary for your trip
- Information on how to contact you in an emergency
My co-parent does not agree to a summer holiday, is there anything I can do?
Sometimes, a co-parent may not agree to a holiday abroad for the children. If this happens, it can be highly emotive and there are a number of ways to try to resolve this issue.
Mediation
Mediation can be an effective way to help co-parents reach an agreement on holidays. Mediation involves a neutral third party who helps to create a safe space for co-parents to discuss the issue and they facilitate the co-parents reaching an agreement.
Mediation is a voluntary process and so both co-parents will need to agree to mediate, be willing to attend mediation with an open mind, and prepared to engage in discussions. A mediator is chosen by the co-parents together and the cost is divided between you.
There are different types of mediation. Usually, you and your co-parent will sit together with the mediator, either in person or online, and discuss the issues. However, shuttle mediation is also possible, where you and your co-parent are in separate rooms and the mediator moves between you. You can discuss with your mediator the type of mediation you would like, and they can help to facilitate this.
The purpose of mediation is for the co-parents to reach a decision together, having negotiated in a safe space, with a neutral third-party present. The mediator will be solely focused on the best interests of the child(ren) and once an agreement is reached, they will draft a written agreement outlining the terms discussed.
- Explore Moore Barlow’s family mediation legal services
- Read our useful guide: What is family mediation? Everything you need to know
Arbitration
If mediation is not successful, arbitration is also an option.
Arbitration is essentially a private court, where an arbitrator makes a decision after hearing from both co-parents or their lawyers. There are a number of advantages to arbitration, including flexibility, confidentiality, speed of the process and the ability to choose the arbitrator.
An arbitrator is a neutral third party, appointed by the co-parents and the cost is split equally. The arbitrator will be an experienced family lawyer who is accredited as an arbitrator by the Institute of Family Law Arbitrators (IFLA). If the co-parents are not able to choose one, then the institute can select an arbitrator.
The decision made by the arbitrator is binding. It is possible to appeal a decision made by an arbitrator but these are limited in a similar way to a court judgment. Arbitration is voluntary and you should therefore enter into arbitration prepared to accept the outcome.
Court
If a co-parent is not prepared to enter into a voluntary process to discuss the issues, then the last resort is a court application for a specific issue order, where the court is specifically asked to make a decision on whether the trip abroad can take place.
The court is inundated with court applications, and the process is expensive, slow and incredibly frustrating! As a result, it should only be considered if there are no other viable options. Following the application, a hearing is listed for the court to consider the information and will encourage the co-parents to reach an agreement between themselves. If this is not successful, the court will then decide how the case will proceed. There are new family procedure rules which govern this type of court application, which mean a judge can pause proceedings and order engagement in mediation if this deem this to be an appropriate way to settle the issues.
If the case proceeds to a final hearing, a court will make a binding decision, having considered all the evidence before it and in line with the child(ren)’s best interests. In the court process, each party pays for their own legal fees, meaning is can be an expensive way for a decision to be reached.
Factors to be considered
If an arbitrator considers your case or if the court determines a specific issue application, there are factors which will be considered, such as:
- The country the proposed holiday will take place in and if there are any safety concerns with that county;
- The travel and accommodation plans and whether they are suitable for the child(ren);
- The factors set out in s1 in the Children Act 1989 known as the welfare checklist, which include, among other things, the wishes and feelings of the child(ren), physical, emotional and education needs as well as any likely impact of a change in circumstance; and
- The best interests of the child(ren).
On the whole, a court or an arbitrator will not take issue with holidays abroad unless it is believed there is a reason why it would not be in the best interests of the child(ren).
How can Moore Barlow help?
Moore Barlow have experienced mediators who can assist your family, should you require the assistance of a neutral third party to aid your discussions. Our family team also has a wide range of expertise in children matters, and can assist in arbitration, court applications or providing advice on issues relating to your children’s arrangements.
Please contact us if you have any questions or if we can be of assistance
