Sun, Sea and School holidays

The school holidays are once again upon us.

This article is to consider issues surrounding children's school holidays and about whether an amicable agreement, can be reached concerning children spending time with both parents.

Holidays can be a real concern in fact to both parents.  Sometimes when children live with one parent - then that parent can feel a burden of responsibility when the children are on their school holiday. It may be that the other parent will see the children infrequently during that time and greater responsibility is then placed on the resident parent to ensure that that child is properly looked after during the school holidays. Sometimes the exact opposite is true - a parent will only offer a small amount of contact during the holidays and the other parent therefore feels very aggrieved why they do not get longer contact during that time. A fine balance therefore has to be set.

Every case is very personal to the individual parents and children. When the Children Act came into force in October 1991 the principle was that "no order should be made unless the Court considers that in making an order it would be better for the child than not making an order."  This is the principle that we as lawyers have to frequently consider with our clients. A lot of parents naturally agree arrangements for their children without any assistance from solicitors or the courts and this, of course, is the ideal situation. We also try and remind parents that there will often be disputes between them and it can be increasingly difficult for solicitors and Courts to involve themselves every time. Holidays are no exception.

We want to consider two specific matters. The first is whether or not the Court can involve itself in trying to define exactly what pattern of contact can take place over a holiday. The second issue is the unfortunate scenario of what would happen in the event of a child not being returned after the agreed holiday period.  What legal action could be taken in these circumstances?

If it is at all practically possible, the parents should raise the issue of holiday contact as early as possible in the New Year. If the parents are able to agree a general principle of trying to share a holiday then they should try and agree specific dates and not book holidays without trying to agree these dates some time in advance. Both parents may have to book time off work and often try to arrange holidays in conjunction with other family members. A sympathetic meeting really should be attempted or the issue could be discussed with professional and neutral help at mediation. If neither are possible, then an application to the court can be considered to define and establish the pattern of contact that should take place.

Courts are, however, reluctant to try and specifically state how contact should take place over a holiday period. If the Court were to give specific days or specific weeks for each year then this would be changing on an annual basis - making it virtually impossible for the parties to follow any rigid pattern. Also, unless there is an extreme case, the Court will not want to involve itself time and time again in sorting out these matters. A court will often make, for example, general orders for holiday contact such as the child spending one half of all holidays with the other parent or three weeks in the summer and one week at Christmas and Easter.

Usually it would appear best to attempt to try and agree in principle that the contact will take place with an equal amount of time for each parent. It can be an anxious time for parents, when children go away with the other parent for one or two week's at a time. As in all matters, trust has to be built up and reassurance can be given through transparency of information being provided to the parent who usually has care through providing details of flights, airport, destination, accommodation and an emergency contact number.

It also has to be borne in mind that if there is a residence order in force a child cannot be removed from the United Kingdom by either parent for a period in excess of 1 month without permission of all those with parental responsibility.

There may be other implications too in terms of passports in that a father without parental responsibility would need to request the child's passport and agree to return this to the mother without argument upon their return. It is right to say that in disputes concerning who should hold a child's passport a court will usually order that except for the use of foreign holidays a passport should be in the possession of the parent who usually has full time care.

These are decisions and aspects that are best not left to the last minute particularly if there is any likelihood that the parents will not be able to agree. A court cannot guarantee to hear an urgent application on these matters before any intended flight out of the country due to their own work loads in any event which adds uncertainty to an already stressful situation.

What if a child was not returned?

This is something that would understandably cause fear to a parent and especially in circumstances where a threat of such action had been made previously. A failure to return damages the trust between parents and will undoubtedly harm the level of future cooperation regarding holiday contact. The police are often powerless or reluctant to help and can often treat the matter as a civil matter in which solicitors and courts should properly be involved. It is always possible, in extreme cases, to make an urgent application to the court for the swift return of any child not returned in accordance with an agreement or court order following contact. If such an application is successful it is usual for the order to be made within a few hours of consulting a solicitor and the child is usually returned within 24 hours and at that point often with the cooperation and assistance of the police.

We appreciate that things do not always go to plan.  The success of holiday contact usually depends on clear communication between the parents and reassurance by the parent exercising contact that the child will be returned on the day and time originally agreed.

Holidays are viewed by the courts to be beneficial to a child's development and relationship with the non-resident parent and as such unless there are legitimate welfare concerns arising from the proposed holiday contact they are to be very much encouraged. Children usually enjoy holidays whether at home or abroad and the same is of course true for the parents themselves who will look back with fond affection at their own childhood trips and time spent with their own family.

This article has been provided by Tim Weatherhogg who is a Fellow of the Institute of Legal Executives at Dunn & Baker Solicitors, 21 Southernhay East, Exeter, Devon. 01392 285000