NICOLA WATSON explains the rights of separated parents when it comes to spending holidays with their children
Summer holiday planning can become extra complicated for parents who are no longer together but want to ensure they spend some time with their children. While many will come to a mutual agreement over who gets the kids, and when, there are often disputes over such issues as taking them out of the country, or out of school during term time.
Sometimes these issues can turn into more serious conflicts and that’s when you need to know your rights.
Do I require my ex-partner’s consent to take my children abroad?
A parent does require the other parent’s consent if they want to take their child/children abroad on holiday. If their ex-partner refuses to consent, they cannot take them abroad unless they obtain a court order, called a specific issue order, allowing them to do so.
If you are the parent considering withholding your consent to a proposed holiday, it is important to think about why you are doing so. Any decisions regarding children should be based solely on their welfare and what is in their best interests, considering the children’s own views where appropriate. If the matter was to be taken to Court to be decided by a Sheriff, this will be his/her primary consideration.
Generally, it is accepted that holidays are good for children. They will visit new places, enjoy new experiences and have the chance to learn about other cultures. Provided the children are safe and well looked after by the other parent, there is no reason why they should not be permitted to take them abroad for a holiday.
What if my ex-partner wishes to take the children out of school for the purposes of a holiday?
Taking children out of school during term time for the purposes of a holiday abroad is generally discouraged by the local authority. Schools can grant authorised leave for this purpose in exceptional circumstances, however this is generally the exception rather than the rule. Even if you are willing to consent to your ex-partner taking the children abroad during term time, without the prior approval of the school, this will be recorded as an unauthorised absence for their records.
If you refuse to provide your consent, your ex-partner would have to apply to the Court for a specific issue order, asking the Sheriff to provide permission for the holiday. Given the general view that this is to be discouraged, there would need to be exceptional circumstances for a Court to grant an order permitting a holiday abroad during term time.
Exceptional circumstances might include if the holiday was for the purposes of attending or participating in the wedding or another significant event of a close family member, or if it can be established that the proposed dates are the only periods of leave which the other parent can take from work.
General convenience or cost-saving is unlikely to be sufficient to convince a Sheriff to grant a specific issue order allowing children to be removed from school to go on holiday.
Can I stop my ex from taking my children abroad with their new partner?
Understandably the possibility of a new partner being present for any proposed holiday can make matters more difficult. This is particularly so if the relationship is relatively new or if you do not have a lot of information about him/her. If this is a concern, it is worth exploring these issues with the other parent where possible.
If you are considering withholding your consent due to a new partner attending the holiday, this should be based on welfare considerations for your children. You need to look at matters objectively and try not to base your decision on any personal bad feeling or ill will between you and your ex and/or their new partner.
If you refuse to give consent and the matter is raised in Court, the Sheriff will need specific reasons as to why the children should not be allowed to go on holiday.
A general feeling of dislike or mistrust is not likely to persuade a Sheriff that the children should not be permitted to attend, particularly when they will be going with their other parent whom the Sheriff will assume can be trusted to exercise their own parental judgement when deciding who is appropriate to be around your/their children.
Nicola Watson is a partner in family law at Aberdein Considine
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