Do I need consent to take my child on holiday abroad with me? A guide to what you need for the summer holidays

It is approaching that time of year when people start to turn their thoughts to summer holidays. Where parents are divorced or living separately, making arrangements for a holiday abroad with their children can be a challenging endeavour. If the parties’ relationship is strained, even having the most basic of discussions regarding holiday plans can be challenging. It is beneficial that planning is undertaken at the earliest stage in order to allow for time to iron out any issues prior to proposed travel. One of the main issues that we encounter as family solicitors when discussing holiday travel with clients, is the question of consent.

What does the law say?

The Children (Scotland) Act 1995 (“The 1995 Act”) is the relevant piece of legislation that we need to look at. Sections 1 and 2 of the 1995 Act outline what is meant by Parental Responsibilities and Parental Rights (“PRRs”). The part that deals with the need for consent, is found within Section 2 of the 1995 Act.

Section 2(3) of the 1995 Act states, “Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.”

Section 2(6) states, “The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both.”

The rights mentioned in Section 2(6) relate to a person having the right to have the child living with him or otherwise to regulate the child’s residence, and if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis.

In Scots Law, it is clear then, that consent is required by all of those people holding PRRs, to allow for a child to travel abroad for a holiday.

Is there a need for written consent?

In short, no. The law in Scotland does not expressly state that written consent is required. Verbal consent is as legally binding as written consent is in this case. In practice, it is likely that having some form of written consent, even if it is informal such as via email, text message, Messenger or WhatsApp for example, would be helpful in order for the travelling party to show that consent has been provided.

What if consent isn’t given or is withdrawn nearer the time of travel?

Section 2(3) of the 1995 Act is, again, where we need to look for our answer. It starts, “without prejudice to any Court order…” This means, that a Court order may be applied for if consent is refused by a person holding PRRs.

If there are no wider questions of residence or contact, and the only issue in question is consent to travel for a holiday, the party who is looking to travel may apply to the Courts for a ‘specific issue order’. This is a type of Order that deals with the specific issue that is before the Courts.

Prior to making a Court order, the Court needs to have regard to the overarching principles, namely:

1. The court must regard the welfare of the child as its paramount consideration (the “necessity” principle)
2. The court is prevented from making an order unless it would be better for the child that the order be made than that none should be made at all (the “minimum intervention” principle)
3. The court must, so far as is practicable, give the child an opportunity to indicate whether he or she wishes to express views and if so to give an opportunity to express them

When assessing welfare, the Court will consider a number of factors. The list isn’t exhaustive, however common considerations may be: the age of the child, the duration of the holiday, the destination of travel, any specific health needs the child may have and whether they can be met while the child is away from home and, provision for contact with a caregiver who remains in the UK.

Can I prevent my child from being taken on holiday abroad?

If a person holding PRRs refuses to consent, and is concerned that their child may be taken abroad regardless, that person may apply to the Court for an order preventing the child being removed from their care, or from Scotland, without their express permission or consent or without a Court Order. This is called an order for Interdict and can be granted on a temporary (interim) basis. It is an order which can be granted on an emergency basis where necessary but it is important to act quickly in those circumstances. The Interdict, or interim interdict, will remain in force until it is amended or cancelled by the Court.