It is difficult enough to plan a family holiday that accounts for everyone’s schedules and desires, let alone making sure there is availability at the chosen destination and confirming a booking. This process is more difficult when parents are separated. Ideally, separated parents will have a parenting plan that outlines when holidays will be and how they are organised. However, frequently this is left for separated parents to agree on an ad hoc basis, which works for some separated couples but not all. Many separated parents find it too difficult to agree on, or too late to organise holidays, so an opportunity is lost and in turn, resentment and tension builds.
The types of issues that can cause problems for separated parents when considering holidays are:
- Agreeing dates: Taking children on holiday will usually be confined to the school vacation times and both parents will have their own needs and schedules to account for, including their work, new partners’ work/availability, other family members or friends’ dates and important events.
- Type of holiday: Will this be an activity holiday and suitable or child-focused; who will be accompanying the parent and child and what will the accommodation and facilities be? What will the emergency contact details be?
- Holidays abroad: Do both parents agree to the child going on holiday to a foreign country? Without joint consent or court order, no child is permitted to leave the country unless the travelling parent has a “lives with order” which allows them to take a child away for up to four weeks, but that does not stop the other parent from applying to prevent the trip.
- Passport and administration: If there is a consensus on a holiday abroad, who will have the passports prior to departure and how will these be held when they return? Further, especially now with Covid, what further administrative requirements will parents need to have when travelling with children and will the other parent give their consent where required in certain countries?
- Contact with the other parent: How will contact with the other parent be arranged when a child is on holiday?
This is by no means an exhaustive list but it is indicative of the problems that can occur. Parents with a good relationship can usually sort these issues out without assistance but if not, what are the options? Fundamentally a dispute about holidays can be resolved through a court process or dispute resolution.
Where there is a dispute on any aspect of parental responsibility, including children’s holidays, a court can decide. The process however of getting the court to do this is by no means quick or straightforward. The court will require parties to attend a mediation information assessment meeting (MIAM) before applying to the court for assistance. If the case is not suitable for mediation, they will then arrange for the court welfare service (CAFCASS) to undertake safety checks, which may take four to six weeks. After the safeguarding checks have been completed, a court officer will assess how and when the case will be heard and dealt with. This can take a long time and a date for a first hearing may not occur for two to four months after making the application. Unless an agreement is reached at the first hearing the court will set down the issues for trial. This may take another few months to be fixed, possibly with CAFCASS having to prepare a report. If the issues are confined to a child going abroad it may be possible to apply for an emergency hearing but there is a risk here if the court does not consider the application sufficiently urgent to prioritise.
Any parent applying for the court to deal with holiday disputes needs to be forward thinking and make the application as soon as they know a holiday will not be agreed with the other parent, ideally at least six months before.
There are various dispute resolution options available but the most apt for holiday disputes are probably mediation and family arbitration.
- Mediation: The main function of mediation is to enable the parties to reach their own agreement. A skilled mediator will explore the positives and negatives of the proposal for the holidays with the parents, and encourage compromise and systems to help reach a consensus in future. They will assist in creating agreements and parenting plans to minimise problems occurring in future. A mediator who has had child inclusive mediation training can also discuss with a child their preference and feed back to the parents if required. The outcome, if successful, is that the parents can organise their lives and holiday time between themselves going forwards. They also have the chance of rebuilding trust and a better relationship with the other parent. This type of mediation can be organised quickly and at short notice at the convenience of the parents. It works well with deadlines for booking holidays. If after a short period of time trying to mediate, parents find that they have not been able to agree, they still have the option of trying family arbitration or making a court application.
- Family arbitration: The main function of family arbitration is for a legal and binding decision to be made on a family dispute by a family arbitrator. In a question over holidays, the parties only need to decide on the identity of the family arbitrator. Once they agree to this, the arbitrator will then ascertain from each side what their concerns are about holidays and hear from each on the issues (in writing or orally). When they have assessed this information the arbitrator will make a decision in the same way that a judge would do. They will notify the parties by giving written reasons. The main differences however are that the parties will each pay for the arbitrator (which is usually at a relatively low cost compared to the cost of going to court) and they will be able to direct that a decision is made within their own timescales as opposed to the courts. This can be very quick and without the requirement for there to be an oral hearing as there would have to be in court. An oral hearing can also be arranged if necessary, again at the convenience of the parties. The system is very flexible and also enables the parties to continue to negotiate until a decision is made.
The dispute resolution options for sorting out holidays are quicker and more flexible than the court process. Either way, the dispute on holidays will be resolved.
Please do not hesitate to contact Fiona Read or other members of our family team. We are more than happy to answer any questions.