Do I need my ex's permission to take our child on holiday?

If you're separated or divorced and want to take your kids abroad on holiday, you may be wondering if you need permission from your ex partner first. Find out everything you need to know, including the travel rules if your child has a different surname to you

As part of our section tackling specific issues around divorce and separation, we answer a mum who split up with her partner and wants to know about holidaying abroad with her child. Expert Jane Robey from National Family Mediation gives her advice ....

The dilemma: Do I need my ex partner's permission to take our daughter on holiday?

A mum asked Netmums: 'We're going abroad this summer and my daughter has my ex-partner's surname. I'll take my daughter's birth certificate with us when we go, but do I also need to get a written letter of permission from my ex?'

The expert advice ...

'The short answer is yes, you do need his written permission,' says Jane.

‘Assuming you are talking about going abroad for a 2-week holiday, then you need to get permission from everyone with Parental Responsibility (PR) for the child before taking them abroad.

‘A letter from your ex is usually enough to show you have got that permission.

‘You can only take your daughter abroad without getting permission (for up to 28 days) if you have a child arrangement order that says your daughter must live with you.

‘If he’s not willing to give permission, then your must apply for a court order to obtain permission to go abroad.

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What about mediation?

‘Bear in mind that the family court now places much more emphasis on parents reaching their own agreements and, in most cases, there is a requirement that parents have, at the very least, had a meeting with a mediator called a Mediation Information and Assessment Meeting (MIAM) before an application to court can be made.

‘If your intention is to leave the country for longer or more permanently, and you are unable to agree this with your daughter’s father, then you will need to make an application to court for a Specific Issue Order.’

Why is it good to use mediation?

'The benefit of mediation is that it's usually quicker and cheaper than going to court and agreements reached in mediation are more durable because they have been agreed by the parents,' explains Jane.

'Legal aid is available for mediation. It's means tested and can be awarded to people with low income. If you are eligible then your MIAM and one session of mediation is free of charge for both parents.'

'If you cannot reach an agreement in mediation then the mediator can sign a C100 application form that allows you to make an application to court.

'If you need to go down this route make sure you have a meeting with a Family Mediation Council Accredited mediator.'

What is Parental Responsibility?

According to government legislation in The Children Act 1989, parental responsibility is defined as ‘all rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his property’.

'If your ex is named as father on your daughter's birth certificate – and if she was born on or after 1 January 2003 – than he will have automatic Parental Responsibility (PR) for her.

‘A person who has parental responsibility has the right to be involved in major decisions concerning arrangements for a child, such as where they will live and where they go to school.

‘This can be tricky if you're separated and communication between you isn't very good, because the law assumes you'll both continue to make joint decisions about your children even after separation.

‘Having parental responsibility does not mean one parent can overrule another. If you're unable to agree on major changes, like moving house, changing school or moving to a different country, it's likely an application to court will be made to decide what will be right for your children.

‘The court will consider the application with the child’s welfare at the heart. If, for example, you wanted to emigrate, the court will look at how your child will maintain a relationship with the parent left behind.’

How do I get a court order to allow me to take my daughter abroad?

If your ex doesn't give his written consent and you can't agree in mediation, the only way you can travel is to apply to the court for permission.

'You'd need to apply for a Specific Issue Order under Section 8 Children Act 1989,' explains Jane.

'As the name implies, this decides specific questions connected with issues of parental responsibility when parents aren't able to agree, such as whether you should be able to go aboard.

'If you take your daughter abroad without your ex’s permission and without getting the court's permission, your ex could apply for a Prohibited Steps Order under Section 8 Children Act 1989 to stop you from going.

'If you think getting permission is going to be a problem you need to plan well in advance as there are likely to be long delays in the court process.'

What does the court consider?

'The court will put your daughter's welfare first, over and above everything else and apply the ’welfare checklist’.

'This takes into account factors like your child's age and the likely effect of any change in circumstances on her. It a ‘balancing exercise’, but the final decision will be based on what's in the best interests of your daughter.

'If it's just a holiday and not a permanent move, my experience is your ex should not object because the holiday is certainly going to be in your daughter's best interests.

'If he does object and the matter goes to court, once again my experience is the court are likely to grant your permission to take her aboard for a holiday.

'If you do wish to apply for a court order, you'll need to fill in a C100 application form and send it to your local Family Proceedings Court. The current fee is £245 but if you are in receipt certain benefits you can apply for the fees to be waived.

'Before you can make an application you'll be expected to have a meeting with a mediator.'

Can you travel with a child with a different surname?

If your kids have your ex's surname and you've re-married or have your maiden name on your passport, then travelling with children who have different surname can raise problems at passport control.

‘Border control may ask you questions to establish your relationship with the child,’ explains Jane.

‘It’s advisable to take evidence, such as a birth or adoption certificate, if you are a parent with a different surname. Also your divorce or marriage certificates, if you have a different surname, along with a letter from your ex with his contact information that gives consent for your daughter to travel.’

Read the Home Office's full details about getting permission to take a child abroad. If you are flying, it's also sensible to speak to the airline, too.

For more information, contact National Family Mediation.

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