We are rapidly heading towards that time of year where the end of term teacher thank you cards are popping up in the shops and the children are winding down and preparing for the summer holidays. But for separated parents, it is not always so exciting and for some, can prove to be a challenging and anxious time.
Apart from birthdays and Christmas, the school holidays can prove to be the most contentious time of year for separated parents, particularly where discussions over who has the children over the break are anything but amicable.
We often receive enquiries around this time of year from anxious non-resident parents who are concerned that they are not going to be able to spend quality time with their children during the holidays as the arrangements tend to be dictated by the resident parent, particularly in respect of going abroad. So what are both parents’ rights?
Firstly, where both parents hold parental responsibility, they are entitled to take their children abroad subject to obtaining written consent from the other parent. If the other parent objects to the holiday, a formal application would need to be made to the court for permission to remove the child from the country. Alternatively the other parent may apply to the court for an application to prevent the child being removed. This is particularly applicable where the parent has concerns that the child may not be returned. In which case, the other parent would be expected to provide some assurances that the child would be returned.
If there is a Residence Order in place which states that the child is to live with the parent proposing to take the child away, then they are entitled to do so for up to a month without the written consent of the other parent although it is courteous to let the other parent know.
If only the Mother of the child holds parental responsibility, then she is entitled to take the child abroad without consent from the father, although we would strongly advise that discussions are held before the holiday takes place to avoid potential aggravation and confrontation further down the line.
We understand though that this is not always an option and conversations around the care of the children can be difficult once a relationship has broken down. So what are the options?
- Speak to a solicitor
Most of the time a little assistance from a solicitor can resolve issues quite quickly. There are times when discussions between the parties simply cannot go any further as the communication breaks down and neither party can see beyond their own emotions and perspective. Often some correspondence between solicitors can be useful to break down those barriers and open up the lines of communication once again. By contacting a solicitor, it enables the parties to resolve issues without the added complication of emotional content.
As a member of resolution, Carr & Co. are committed to resolving matters in a constructive and non-confrontational manner; therefore contacting a solicitor should not be viewed as an aggressive step to take. A Resolution Solicitor’s primary concern is to consider the needs of the whole family and to help the parties to reach agreements that are in the best interests of the children.
- Attend mediation.
This is always a good option to contemplate as a mediator will act independently and will advise and guide you both through your worries and issues to try and reach an agreement that you are both happy with. This can then be drafted into a mediation agreement which may provide peace of mind for both parties. One of the advantages of mediation is that you can attend separately although where discussions are in respect of children; it is always advisable to try and attend together. You can make an appointment with a mediator directly or you can contact your solicitor to arrange a referral for you.
- Court Application
The final option would be to make an application to the Court for a Child Arrangement Order. This may result in an Order being made setting out when each parent is to spend time with the children. This option should be used as a last resort and should only be considered once all other options have been exhausted, although we appreciate that sometimes, this appears to be the only option.
However, the Court will not allow an application to proceed until mediation has at least been attempted. Once an application is made, the Court will actively encourage the parties to reach an agreement between themselves and will provide the parties with guidance and support to enable them to do so.
If the parties simply cannot agree, the Court has discretion to make an Order which it believes to be in the best interests of the child. One point which is often misconstrued is that it is the parent’s right to see the child. The legal position is actually that the right to contact with both parents belongs to the child as opposed to a right of the parents. This should always be borne in mind when discussing arrangements for the children.
To conclude, whichever option is chosen, parents should always act in the best interests of the children and therefore their needs must be prioritised over those of the parents. We would advise that wherever possible, parents communicate regularly and constructively when making arrangements particularly in respect of the school holidays. Whether parental responsibility is held or not, we would advise parties to consult with one another as soon as possible particularly where considering taking a child abroad to avoid confrontation which may later lead to court proceedings being issued which ultimately take away from the fun and excitement that children expect during holiday time. Parents should be open and honest with one another about where they intend to take the children and for how long so that concerns can be dealt with sooner rather than later. As a last practical point, it is also crucial to keep the lines of communication open to ensure that arrangements can be made safely and securely without issues such as expiration of passports arising.
If you have concerns around forthcoming school holiday arrangements or indeed any contact issues which you feel you require some assistance with, please contact us on 0191 284 0363.