You may be planning to take your children away over the Christmas period to visit friends and family who do not live close by or to have a festive holiday.
If this is your plan, you need to be aware of the legal requirements in relation to travelling with children when parents have separated.
If you and the children's other parent have separated, you cannot take the children abroad without the other parent's permission.
If the other parent has parental responsibility for the children and no Child Arrangements Order is in place naming you as the parent with whom the child shall live, it is essential that the other parent provides express permission for you to take the children abroad.
Ideally, such permission should be provided in written form. Alternatively, you will need to make an application to the court.
The child's mother automatically has parental responsibility for the child, and the father will have parental responsibility if he is married to the mother or was named on the child's birth certificate.
Alternatively, if you are named on a Child Arrangements Order as the person with whom the child shall live, you can remove the children from the jurisdiction without the other parent's permission for up to 28 days unless prevented from doing so by the court.
However, it is not advisable to take the child away on holiday without communicating this to the other parent well in advance.
What if the other parent does not permit me to take my children away at Christmas?
If the other parent is refusing to grant permission for the holiday, initial steps should be taken for both parents to come to a resolution.
Such steps could include being flexible, taking on board the wishes and feelings of the other parent and ensuring that arrangements are in the children's best interests.
If the other parent does not agree to you taking the children away on holiday over Christmas, we advise that you go to mediation. This should be a first consideration before making a court application.
Mediation involves an independent third party who would work with both parents to achieve an outcome as to the Christmas arrangements.
It is only when an agreement is unable to be made following mediation that parents should consider making an application to the court.
You may wish to apply to court, where permission to take the children away at Christmas is not granted. Three different types of orders can be relevant to Christmas holidays:
- Child Arrangements Order – This Order outlines whom the child is to live with, spend time with, or have contact with. The Order can outline specific provisions concerning Christmas holidays and travel. For example, it may specify that Christmas must be spent evenly between parents, thus preventing a holiday over the whole festive period by one parent. It may alternatively grant permission for a specific holiday during the Christmas period.
- Prohibited Steps Order - The parent who is seeking to prevent the child from going on holiday during the festive period may apply for a Prohibited Steps Order. If granted, this Order would prohibit the other party from going on holiday with the child. However, the court is usually of the view that a holiday is in the child's best interests, and the refusing parent will need to have a good reason to justify their refusal.
- Specific Issue Order - Alternatively, the parent who is seeking to take the child on holiday may apply for a Specific Issue Order allowing them to take the child on holiday despite the refusal of the other parent.
Although these legally binding orders can be beneficial when parents cannot agree between themselves regarding child contact arrangements over Christmas, there is no guarantee that these Orders can be secured prior to Christmas 2023.
Accordingly, mediation is a necessary and essential exercise, and the above court orders could be considered for the following festive period.
If permission is not granted by the other parent or by the court when required, and you take the children abroad, this could amount to child abduction, which is a serious criminal offence.
My child has been taken abroad over Christmas without my permission – what can I do?
If you have not provided consent for the other parent to take the child out of the country for Christmas, and there is no court order allowing for this, you should first contact the other parent and explain your concerns.
You may alternatively ensure that the child's passport is kept safe or refuse unsupervised contact.
If you think that the other parent has committed child abduction and you have real concerns about this, you will need to contact the police immediately.
If there is a real and imminent risk that the child will be removed from the UK, the National Border Targeting Centre can alert all UK departure ports, such as airports and shipping ports, to prevent the removal of the child. Such an alert will remain in place for 28 days.
If the child has been removed to a Hague Convention country, it is possible to request the child's return.