Travelling with children as a separated parent

For separated parents though there are additional things you’ll need to consider if you’re travelling abroad.

If your relationship with your co-parent is strained, even discussing holiday plans can be a challenge. The best advice is to begin planning as early as you can to allow as much time as possible to address any concerns before you travel.

As family lawyers, one of the main issues we come across is consent. If you have a separation agreement or minute of agreement in place, this may already set out the terms of any trips abroad. If your agreement does set this out, it’s wise to take a copy of it with you when you’re seeking legal advice. If you don’t have an agreement which gives general consent for holidays, the law says that both parents must agree to the trip before it can go ahead.

The legal position in Scotland

The Children (Scotland) Act 1995 regulates this area of the law, confirming you’ll need consent from all those people holding parental responsibilities and rights before you take your child abroad.

In simple terms, this means you cannot take your child on holiday outside the UK without consent from their other parent. While text and WhatsApp messages, for example, are valid and helpful, it’s always better to have a formal document in place just in case relevant authorities query the validity of the digital consent.

Some countries do require specific confirmation from the other parent that they’ve given permission for the child or children to travel. This can often be a particular format. Parents should check the guidance on the Foreign and Commonwealth Office website to find out more and allow plenty of time to prepare any documentation that’s required.

Practical issues

There are lots of ways to keep the process as smooth as possible. Honest, upfront communication is key.

Plan ahead; be clear and upfront about your plans and don’t book any flights or accommodation until things are agreed. Leaving things until the last minute is one way to catch the other parent off guard and they may not react in the way you’d like them to.

Ask for their agreement to the trip and if initially they refuse or voice some concerns, try and answer as many of these as possible.

Ensure any documents you need such as passports are handed over in good time. It is useful to have the child’s extract birth certificate, or a certified copy, to take with you. You may also require your extract decree of divorce. These are all useful to create a clear paper trail particularly if you don’t share your child’s surname.

Be prepared to provide clear information about where you’re going together with things such as hotel names and flight times. It’s good practice to provide emergency contact information as well.

Organise the pick-up and drop off arrangements well in advance: ensuring the child feels calm and relaxed at pick up will only lead to a more enjoyable holiday. Don’t involve the child either in the planning or relaying of information before you have consent. The other parent, understandably, may not welcome this approach and it could be upsetting for the child.

What if you can’t agree plans?

If all else fails and your co-parent doesn’t consent to the trip, you can apply to the court for a specific Issue order. This allows you to take the child on this holiday and dispenses with the need for the other parent’s consent.  A court will consider each case on its own facts and circumstances.

The court’s main consideration is the child’s welfare and cannot make an order unless it would be better for the child that this happens rather than not. The court must also, as far as it can, give the child an opportunity to indicate whether he or she wishes to express views and if so to give them an opportunity to have their say.

Other considerations for the court include —

• The child’s age

• How long the holiday will be

• Where you’re going

• Any specific health needs the child has and if they can be appropriately addressed while you’re abroad

• Any provisions for contact during the holiday with the parent who’s staying at home

Can I refuse consent for my ex-partner to take my child abroad?

You can, but it really is a last resort.

If you are the parent staying in Scotland and want to refuse consent, but are concerned that your child may be taken abroad regardless, you can apply to the court for an order stopping them from being removed from your care — or the country — without your express permission or a court order.

This is called an order for interdict and can be granted on a temporary (interim) and emergency basis. The interdict, or interim interdict, remains in force for a specific period until the court amends or cancels it.

Everyone’s circumstances are different, but this approach can create animosity between co-parents. There’s also no guarantee the court will grant the orders either — that’s for the sheriff to decide.

We would always recommend you and your co-parent attempt to reach an agreement between yourselves in the first instance and, if intervention is required, that you consider a dispute resolution method such as mediation. Mediation is an ideal option for managing issues like this. The process ensures both parents are involved in the decision making, but that they work through things together to find a solution.

If you’re planning a trip abroad with a child this year, and need support for consent, our team can help.