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For many, the summer holidays bring a time to relax and reset, when the routines of the school week don’t apply and there is a little less rushing around. Consideration, of course, needs to be given to child care over the holidays, and for separated parents of children under 16, that can sometimes be difficult to navigate.

So where should separated parents start with making child care arrangements over the holiday period?

Each family is different and there is no ‘right’ answer, but the starting point might be to look at the usual term-time arrangement for child care and to ask whether that needs to be altered in any way. When thinking about making arrangements for children, the test to be applied is “what is in the best interests of the child(ren)”? For example, would it be in the child(ren)’s best interests to spend some extended time during the holidays with one/each of the parents? If so, how long, and when? The practicalities of working arrangements and annual leave will likely be a factor. The earlier the discussion can start about these matters, the better, so that there can be a firm plan in place in plenty of time, which can then be shared with the child(ren).

What about travel abroad?

Often, an additional consideration during the summer holidays is travel abroad to sunnier climes. For separated parents of children under 16, where both parents share parental rights and responsibilities in respect of the child(ren), and the holiday is out with the UK, an additional step must be taken before the holiday. That is to obtain the consent of the other parent to take the child(ren) out of the UK for the holiday. It is sensible to have that consent before the holiday is booked. The other parent should be given reasonable notice of the proposed holiday and be provided with travel details e.g. flights and accommodation once they are available.

Both parents share parental rights and responsibilities where the couple were married when the child was conceived, or subsequently, or where the child was born after 4th May 2006 and both parents are named on the child’s birth certificate.

Parental Rights and Responsibilities

Getting good advice is essential in dealing with any separation, whether you have financial matters to resolve, child-related matters, or both. There are a number of ways in which resolution of the outstanding matters can be reached between separating couples. The traditional method is where parties each instruct a solicitor who will negotiate on their behalf. There will be letters/emails backwards and forwards between solicitors with the aim of reaching an agreement on all matters. That agreement is then converted to a written agreement, known as a Minute of Agreement (sometimes called a Separation Agreement). The Minute of Agreement will be signed by the couple.

It should be said that, because “what is in the best interests of the child(ren)” can change over time e.g. as they grow older and their needs change, where child care arrangements are included in a Minute of Agreement, they are able to be changed if those arrangements are no longer considered to be in the child(ren)’s best interests. Recording the arrangements in a Minute of Agreement is still a good way of setting a benchmark for what the parents thought to be in the child(ren)’s best interests at the point at which the Minute of Agreement was signed.

Alternative dispute resolution could be an option

Another method for resolving the outstanding matters is called collaborative practice. This is a non-confrontational approach in which the separating couple attend ‘around the table’ meetings, alongside their solicitors, to agree arrangements. The aim is the same as the traditional approach, in that a written agreement is formulated and signed.

A further approach is for couples to attend mediation with a view to resolving the issues in dispute. Mediation aims to assist parties with communication, and to have an open an honest discussion within a safe environment to enable them to reach decisions together.

In summary...

Finally, if the parties are not able to reach an agreement on the outstanding matters, a Court action can be raised by one of the parties against the other. The Court will only make Orders where they are absolutely necessary, and so if you are able to reach an agreement which works well, then the Court won’t make an Order confirming what that agreement is just because parties would like that to happen.

If one parent is unwilling to provide their consent to a proposed holiday outwith the UK for the child(ren) a Court Order may require to be obtained allowing the travel (known as a Specific Issue Order). In applying the “best interests of the child(ren)” test, the Court generally applies a balancing exercise between varying factors which can include the child being able to join their parent for extended leisure time on a holiday abroad, the impact on the opposing parent’s time with the child(ren), the location and the duration, as well as the opposing parents’ concerns.

The Drummond Miller family law team is extremely experienced in dealing with all aspects of family law including Divorce, separation and child-related matters. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Dalkeith, Musselburgh, Bathgate or Glasgow.

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