Separated parents often wish to spend extended periods of quality time with their children over the Summer months; but when it comes to taking your children abroad on holiday, what do you need to know?
The Children (Scotland) Act 1995 provides that no person can remove a child habitually resident in Scotland from the UK without consent of both parents who have parental responsibilities and rights. This means that if you wish to take your children abroad this Summer, the law says that you will need to obtain the other parent’s consent to do so.
Despite the fact that there is no specific requirement to do so, it is good practice to seek consent in writing. In particular, it is worth bearing in mind that some destinations may even require sight of written consent to travel prior to entering the country.
Of course, many parents have difficulty communicating post-separation, and unless permission to remove a child from the UK is addressed in a Separation Agreement, it can often be difficult to reach an amicable agreement on this matter.
Ultimately, there is the option to apply to the Sheriff Court for a Specific Issue Order which would allow you to take your child abroad on holiday. This can be costly, time-consuming and stressful on both parties, therefore parents should always try to negotiate between their Solicitors, or attend mediation, in the first instance. The Court will take a view of the specific facts of the case, such as any particular objections that the other parent has to the holiday. The holiday may be deemed unreasonable due to the age of the children or length of the trip or it may be that there is a risk that the children will not be returned. However, the overriding consideration will be the best interests of the children. In general, the Court takes the view that a holiday abroad falls within this bracket and broadly speaking they are supportive of non-resident parents enjoying extended periods of contact with their children.
With a view to avoiding matters reaching Court, we advise you to plan well in advance and seek consent from the other parent at the earliest possible opportunity. Be open and transparent about your plans and provide as much information as possible about the holiday. Discuss practicalities such as handing over passports and emergency contact details. Likewise, allow the parent who is remaining at home to raise any concerns they may have and take steps to alleviate these. Think of the child/children and aim to keep their involvement to a minimum. Exposure to any upset may affect them in the long term as well as casting a shadow over the holiday. If you are still unable to come to an agreement, consult your Solicitor.
If you do come to an agreement, we recommend that you give some thought to recording this in writing and putting it into a formal Separation Agreement which can set out the terms of future contact and holidays, and avoid any conflict further down the line.
Most importantly, the paramount consideration should always be the children enjoying quality time with both parents, therefore it is in everyone’s best interests to try and approach this issue in a calm and sensible manner.
The Family Law team at James & George Collie are happy to advise you on any of the points contained in this article or indeed any other related matter.