Scottish family law: Do separated parents need permission from their ex to take their children abroad?

Do divorced or separated parents need permission from their ex to take their children abroad? Scottish lawyer Fiona Rasmusen has some expert advice.

As families in Scotland await the return of brighter and warmer weather, many will also be looking forward to the Easter break and planning a holiday abroad. But for families who have gone through a separation, planning a getaway with the kids might not be so straightforward. Before making any plans or booking travel, separated parents must ask themselves: “Do I need the permission of the other parent to take my child on holiday abroad?”

The simple answer is yes – if the other parent has parental responsibilities and rights. This applies even if the other parent doesn’t play a significant role in the child’s life. As with all disputes between separated couples, it is best if an amicable agreement can be reached, and this is often the case. However, some family situations are more complicated and, as experienced Family Law solicitors, we have advised and worked with clients in this situation. Here, we outline the legal stance for parents and our top tips for planning a holiday with kids after separation.

Tip 1: Plan your holiday in advance

It might seem obvious, but it’s always best to be organised and plan your holiday well in advance. This includes negotiating the consent of the other parent before booking anything.

If you and your ex-partner are engaged in a court dispute and have difficulty agreeing, the issue of holidays can be sensitive. Problems can arise if you aren’t the one who holds the passport. If the other parent does not agree to a foreign holiday and refuses to provide the passport, the Sheriff Court can be asked to grant an order known as a Specific Issue Order and these hearings take time to arrange. Early planning is essential if such an Order is required.

Tip 2: Record consent to a holiday

A Separation Agreement is a document that records matters that you and your ex-partner have agreed on and may include arrangements for the care of your children. This can include a clause addressing consent to any holiday outwith the United Kingdom for a specified period.

If this isn’t in the Agreement, make sure you get written consent to take your child on holiday abroad. 

Tip 3: Try mediation

If the other parent refuses to give consent for the child to go on holiday, mediation can help identify and resolve issues.  Gibson Kerr’s family law team are mediation experts, and we find that mediation is usually a more amicable process than contested court proceedings. 

Tip 4: Make court your last resort

In cases where one parent refuses consent unreasonably and negotiations have been exhausted, the last resort is to apply to the court for a Specific Issue Order. If couples take this route, they must provide as much information as possible to the court about the holiday. The welfare of the child will be at the forefront of the court’s mind in determining if it is in their best interests to go on holiday. They will consider the length of the holiday and the proposed location, as well as the risk of the child not being returned. Depending on the age and maturity of the child, the court may also allow them to express their view. As with all court proceedings, this can be an expensive process. 

We can help

If you need advice or support with negotiating consent for a holiday, applying for a Specific Issue Order, or with any other issues related to separation, Gibson Kerr’s family separation lawyers in Edinburgh can help. For a no-obligation chat, call our Family Law partner Fiona Rasmusen on 0131 202 7516 or email [email protected]

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