Family Law Matrimonial

Parental Responsibility

Parental responsibility is automatically obtained by the mother at the time of birth. A father will obtain it by either being married to the mother, or by being named as the father on the child’s birth certificate.

If the child’s parents are not married and the father is not named on the birth certificate, the only person that shall have parental responsibility is the mother.

Having parental responsibility means that both parents have the same responsibilities and rights as parents as far as third parties are concerned, they are both entitled to information concerning their child’s welfare and should consult with one another about issues such as their health, education and religion.

After separation, positive communication with the other parent is imperative. Unfortunately, child arrangements can breakdown and problems can arise when, despite communication, agreements cannot be reached. A typical example being a dispute over a child’s holiday; when one parent wishes to take the child abroad on holiday and the other does not consent.

If Children Act proceedings have previously taken place there shall be an existing child arrangement Order to be followed and this Order shall set out with whom the child lives and the time that is to be spent with the other parent. The parent who has the benefit of the “live with order” shall be able to take the child out of the UK for a period of less than one month without needing the permission of the parent who has the “spend time with order”.

To be clear, the “spends time with parent” will still need permission from the “live with parent” if they wish to take the child out of the UK, even if there is a child arrangement Order in place. However, if legal representation was provided through the course of those proceedings, holiday arrangements should be incorporated into the Final Order to ensure there is clarity going forwards.

The most pressing question to ask in the circumstance where a holiday cannot be agreed between the parents, and there is not an existing Defined Child Arrangements Order in place, is which parent has the responsibility to rectify the dispute?

It is common when one parent does not wish for their child to travel with the other parent that the non-travelling parent shall take matters into their own hands and seek legal advice. If matters cannot be agreed through solicitors’ negotiation or mediation, an application would be made to Court under section 8 CA 1989 for a prohibited steps Order; to prohibit the proposed holiday from taking place. It may well be that through the course of the proceeding assurances will be given to the non-travelling party which will alleviate all concerns, in which case an agreed Order could be entered into to enable the travel to go ahead.

Any Order made by the Court must be clear, setting out in plain terms what has been ordered and its duration.

It is important for the parent who is concerned about the travel to consider the following simple factors in their decision making;

– Will the child be kept safe.

– Does the travelling parent have the capacity to safeguard the child throughout the holiday.

– Does the child have the capacity to express their wish to attend, and if so, will the travel be to their benefit.

– Have the holiday details been provided including the destination, accommodation, inward and outward flight details.

– What is the likelihood of the child not being returned.

If all the above factors are not of concern, it is generally accepted that the holiday should take place.

If the non-traveling party does have concerns in regard to these factors, they must seek urgent legal advice. Where there is a possibility of the child being permanently removed from the UK it may be necessary to make an urgent application to the Court to request a port alert. If granted, the police should be urgently notified and they shall contact all ports and airports within the UK through the police national computer to ensure that the travelling party is not able to leave the country with the child.

If you have any questions or concerns about whether as a father you have parental responsibility, whether you need permission to take your child on holiday or whether you should stop your child being taken on holiday, then please contact Nicholson Jones Sutton solicitors who can offer advice and assistance in all matters relation to child arrangements.


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