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Divorced parents, consent and taking a child on holiday

Divorced parents, consent and taking a child on holiday

As a divorced parent do you know if you need consent before you can take your child abroad for a holiday? When looking forward to a summer holiday, it is a question that often arises for separated or divorced parents. Do you need both parents to consent?

This can be a fraught issue and unfortunately the law does not help. The Children (Scotland) Act 1995 states that when both parents of a child have parental responsibilities and rights, the consent of both is required prior to a child leaving the United Kingdom. The law does not specifically require the consent to be in writing.

Whilst I believe the Act was designed to prevent child abduction on a permanent basis, it is unfortunately drafted in such a way that if one parent wants to go to Spain for a two week summer holiday the consent of the other parent must be obtained.

In a situation where two parents are having difficulty cooperating or are in the middle of a court dispute, the issue of holidays abroad can be significant, particularly if the parent who seeks to take the children abroad is not the one who holds the passports. The court in such circumstances can be asked to grant an order known as a Specific Issue order to ensure passports are produced by a certain date and to order that the holiday take place. Hearings for such orders take time to arrange so early planning is essential. A court will be slow to prevent a parent taking their children on a nice holiday but the other parent may well have objections to raise. Ultimately the test to be applied is the same as in any other matter affecting a child - the welfare of the children is the paramount consideration. Is it in their best interests to go on holiday? Is there any risk that they will not be returned? Is the length of time too long bearing in mind the ages of the children and the location of the proposed holiday? These are factors a court would take into account.

It is worth noting that there is no problem taking a child on holiday anywhere in the United Kingdom. You can go to Devon or Cornwall or Tiree without consent but the weather may not be as good!

If you require any legal advice specific to your individual circumstances, get in touch with one of our experienced family lawyers. 

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Written by : Lynne Collingham