Monday, 22 March 2010

Shared residence & holidays

Well I am back from the abyss of work I have been plunged into post Baby P although despite statements to the effect that things are slowing down it is marginal.

An interesting question has been exercising me: can a holder of a shared residence order take a child on holiday abroad without the consent of the other holder / parent.

Regrettably the law is not clear on this and even Hershman & McFarlane (a leading and authoratitive text on UK family law) agrees that this is so.

It could be argued that since, under the Act, any holder of a residence order can take a child out of England & Wales for up to 4 weeks without the permission of the other parent with PR, this will apply equally to both parents if they share a residence order.

However, there is an obvious potential problem with this argument. Even the holder of a sole residence order may run into difficulties if there is also a contact order and the proposed holiday might mean that the child is not made available for contact as ordered. The same applies where the shared residence order is specific about the times the child should be spending with each parent.

Ideally, any potential argument between bloody relations can be avoided by having a clear agreement in the first place. This should extend not only to dealing with holidays abroad but also to holidays in the UK and what will happen - for example, if one parent has time over and above the strict provision of the general rule, will it be made up. How long in advance of any holiday period should one parent notify the other of plans? Should there be some telephone contact during the holiday? What information will the holiday taker need to provide eg dates, flight times, copy tickets, information about accommodation whilst away, telephone numbers etc.

So if you are the potential holder or holder of a shared residence order I would suggest:

  • make sure your lawyer makes provision for this in the agreement - no agreement or order can provide for every eventuality but you can make some in principle agreements or work out how to reach agreements about specifics in future
  • talk to the other parent as soon as you can about what you want to do - it can take a very long time to sort out in court if they will not agree so you need to be prepared
  • remember they will probably also want to be able to do the same as you - think what you would be worried about if they proposed a holiday abroad and expect to offer them the same reassurances, information or substitute time
  • do not tell the child about the proposed trip until the two parents are agreed as to what should happen
  • do not unreasonably refuse your ex's request for a reasonable holiday abroad - you may be in the same boat soon - you may want to get this agreed in outline when they ask you in the first place
  • do be aware that there are some countries from whom it may be very difficult to recover children from - non-Hague Convention countries in particular (see Reunite for a list of countries which have signed the relevant treaties)
  • at the same time don't get carried away by fanciful abduction fears - how likely is it that your ex will kick over the traces and run away to live in a foreign country - the court will not be persuaded by generalised and non-specific fears about what you have watched on television
  • it may be a different matter if it is proposed that a child could be taken to a dangerous country or to participate in a risky activity - that would be taken seriously as a concern by the court - whereas Eurodisney - unlikely!
  • if the other parent is refusing to agree and you think that refusal is unreasonable you can apply to the court for permission to go - this takes time and unless you act quickly you may have to wait for a court hearing
  • if you get a request from the other parent and you are not happy to agree (having considered all the points above) you may wish to consider issuing an application for a prohibited steps order to stop them - again this takes time so jump to it if you are genuinely concerned

If you are planning to take a child abroad you should be aware that you may be accused of child abduction offences if you do not have the relevant agreements in place.

Here is what the relevant provisions of the Child Abduction Act 1984 say:

1.
Offence of abduction of child by parent, etc.
(1) Subject to subsections (5) and (8) below, a person connnected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.
[(2) A person is connected with a child for the purposes of this section if
(a)
he is a parent of the child; or
(b)
in the case of a child whose parents were not married to each other at the time of his birth, there are reasonable grounds for believing that he is the father of the child; or
(c)
he is a guardian of the child; or
(d)
he is a person in whose favour a residence order is in force with respect to the child; or
(e)
he has custody of the child.
(3) In this section the appropriate consent, in relation to a child, means
(a)
the consent of each of the following
(i) The childs mother;
(ii) the childs father, if he has parental responsibility for him;
(iii) any guardian of the child;
(iv) any person in whose favour a residence order is in force with respect to the child;
(v) any person who has custody of the child; or
(b)
the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or
(c)
if any person has custody of the child, the leave of the court which awarded custody to him.
(4) A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if
(a)
he is a person in whose favour there is a residence order in force with respect to the child, and
(b)
he takes or sends him out of the United Kingdom for a period of less than one month.
(4A) Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989.]
(5) A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if
(a)
he does it in the belief that the other person
(i) has consented; or
(ii) would consent if he was aware of all the relevant circumstances; or
(b)
he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or
(c)
the other person has unreasonably refused to consent,
[F2 (5A) Subsection (5)(c) above does not apply if
(a)
the person who refused to consent is a person
(i) in whose favour there is a residence order in force with respect to the child; or
(ii) who has custody of the child; or
(b)
the person taking or sending the child out of the United Kingdom is, by so acting, in breach of an order made by a court in the United Kingdom.]
(6) Where, in proceedings for an offence under this section, there is sufficent evidence to raise an issue as to the application of subsection (5) above, it shall be for the prosecution to prove that that subsection does not apply.
[ (7) For the purposes of this section
(a)
guardian of a child, residence order and parental responsibility have the same meaning as in the Children Act 1989; and
(b)
a person shall be treated as having custody of a child if there is in force an order of a court in the United Kingdom awarding him (whether solely or jointly with another person) custody, legal custody or care and control of the child.]
(8) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority [ detained in a place of safety, remanded to a local authority accommodation or the subject of] proceedings or an order relating to adoption.

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