After a divorce or separation, one parent may wish to take their child on holiday abroad, understandably without the other parent. Although legal under Scots Law, there are several rules and customs that are important to take into account.

Who has parental rights?

Children are not property. They are people with their own rights in any legal dispute around family relationships. Although the child’s wants and needs will always be taken into account, their relevant guardians have parental rights until the child is 16 years old, whether this is their biological mother and father, adoptive parents or other responsible adult(s).

Parents on the child’s birth certificate automatically have parental rights, as well as married couples with children. Either parent with parental rights is legally entitled to care for the child, including taking the child abroad. An adult who is not a legally recognised parent has no right to do so without the consent of the actual parent or an order of the court.

Dealing with travel disagreements

It isn’t uncommon for separated parents to have difficulty cooperating and agreeing on what is best for their child, especially if communication between them has been less than civil. These scenarios can sometimes lead to one parent using the child as a weapon to punish the other, denying them certain rights, such as taking the child on holiday.

Separated parents can request a Minute of Agreement, a legally binding contract drawn up with the help of solicitors. This agreement can regulate finances, property, maintenance and child care, including holidays. The solicitors will ensure that this contract allows certainty and fairness, and is based on the child’s best interests and wishes. A Minute of Agreement can prevent one parent from refusing holiday arrangements or not handing over the child’s passport.

If one parent refuses to provide the other with the child’s passport and there is no Minute of Agreement in place, a Specific Issue Order can be requested. These orders are granted by the court and can ensure the passport is provided by a certain date for the planned holiday to go ahead. It’s important to note that hearings for Special Issue Orders can take time to arrange.

In a Special Issue Order hearing, the court will be unlikely to deny the child a holiday with their parent, but they will consider any objections from another party with parental responsibility. The key things that they will take into account are:

• Is it in the child’s best interests to go on holiday?
• Is there any risk that the parent will not return the child?
• Is the duration of the trip reasonable given the child’s age and the destination of the holiday?

Fear of abduction

A situation that can cause great anxiety is the unilateral decision of one parent to take the child abroad in the face of opposition or worry on the part of the other. This is especially prevalent when the deciding parent has family that resides in a place outside the jurisdiction of Scottish law and courts.

If there is genuine and reasonable fear that a parent has a plan to remove the child permanently, an interdict can be requested from the Sheriff's court, an order to stop travel. If necessary, the order can be extended to the court abroad to force the child’s return. If a parent tries to smuggle a child away whilst a court case is ongoing it could lead to criminal charges of abduction.

These matters are complex and unique to each family. If you are in any reasonable fear of your child being removed, or other travel-related concerns, contact a solicitor.