Sun, Sea and Separation: Legal Considerations for Taking Children on Holiday

For separated parents, on top of all other considerations when going on holiday with children, there is also the added element of making sure that the legal implications of taking children away are considered.

Do I need the consent of my former partner to take our child on holiday?

Under The Children (Scotland) Act 1995, no person may remove a child habitually resident in Scotland from the United Kingdom, or retain any child outwith the United Kingdom, without the consent of all persons who have and are exercising the parental right to regulate the child’s residence or the parental right of contact.

Furthermore, The Child Abduction Act 1984 provides that it is a criminal offence for anyone to remove a child from the United Kingdom without gaining the consent of the other parent, provided there is a residence order in favour of either parent.

Thus the law takes the issue very seriously and it is important to gain the consent of the other parent before taking children on holiday abroad. It is best to discuss the holiday with the other parent and gain their consent before making any bookings.

However, this consent is only required if you are taking children abroad, such consent is not required for holidays in the UK.

How can I prove that I have gained consent?

If you are separated, you may have or may create a separation agreement. This agreement will record any terms of an agreement between separated partners including financial and child care arrangements, with a view to divorce. It is possible to provide in this agreement consent for any holiday over a specified period. If this consent is not contained in the agreement, you can get the consent in any other way in writing – email may be a good option for this.

What can I do if my partner won’t give consent for the holiday?

If your partner refuses to grant consent, you may apply to the Sheriff Court for a specific issues order which would permit you to take your children out of the country on holiday.

The court is more likely to grant the order of you can give them all the information about the holiday. The court will take into account the children’s welfare, assessing whether it is in their best interests to go on the holiday. The children may in fact be asked to express their views about going on the holiday.

However, such an application is an expense to be avoided. The best option is to discuss the holiday with your former partner. If the other parent is being unreasonable in withholding consent, often the threat of an award of expenses against them for court action could be sufficient to persuade them.

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