What will I stand to get out of the matrimonial assets?

Posted on 15th December 2022 by McAlister Family Law

What will I stand to get out of the matrimonial assets?

With the United Kingdom on the cusp of a cost-of-living crisis and inflation at record highs, divorcing couples will likely face concerns now more than ever as to how finances are to be treated upon divorce. The biggest question on the minds of divorcing couples is often, ‘what will I stand to get out of the matrimonial assets?’ Here, Aaron Williams looks at what the court considers when looking at how to divide assets on divorce and how they aim to meet the ‘needs’ of each party involved.

So, what does the Court consider when looking at how to divide assets on divorce?

As with many things, there is no one size fits all answer to separating matrimonial assets. The principal aim of the court is to ensure that there is ‘fairness’. Unfortunately, fairness has a broad horizon in the context of family law, and it is largely left to the discretion of the judge as to the outcome of the matter.

The court has a duty to consider all circumstances of a case, this is done so using the principal piece of legislation in divorce; that of the Matrimonial Causes Act 1973, in particular the factors listed in section 25(2)(a) – (h) which can be found here: – https://www.legislation.gov.uk/ukpga/1973/18/section/25

The phrase ‘needs trumps all’ is often cited when assets are limited assets in matrimonial finance cases. The starting point in any matrimonial finance case is to consider an equal division of what has been built up by the parties during the marriage; however, an equal division of assets is not always appropriate in every case to achieve fairness.

So where does that leave separating couples? Well matters largely come down to the circumstances of the parties, the standard of living and the resources available to meet needs. What was enough to meet the needs of one household may not necessarily be enough to meet two.

When settling the matrimonial assets, there is no discrimination between separating couples regarding their respective roles in the relationship. For example, where one party has typically taken the breadwinner role, whilst the other party is the home maker, their roles are to be regarded as equal irrespective of what they have contributed financially.

So, how does the court implement section 25 of the matrimonial causes act?

When assessing how to separate who should have what proportion of the assets of the marriage, the first consideration of the court is that of the needs of any children.

The court then look to meeting the needs of both parties, principally looking to ensure that each person’s housing needs, and income needs are met.

Looking at the matter holistically the court will principally consider the financial needs, obligations, and responsibilities which each of the parties to the marriage have or is likely to have in the foreseeable future (s.25(2)(b) MCA 1973). The court will look at the general resources of the parties and will broadly separate the needs of parties into capital needs and income needs. Capital needs, is often that of significant single capital outlays, purchasing a property, furnishings, replacement car etc. Income needs is that of the day-to-day costs that parties require on a monthly basis to live.

When trying to determine whether the parties have the means to meet these needs, the court will consider Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Commonly referred to as the financial disclosure process, the parties are expected to provide ‘full and frank’ financial disclosure. This includes determining through the assistance of expert evidence or agreeing by consent, the value of any assets owned by the parties, including property, businesses, trust assets, chattels, and pensions. The court will also need to ascertain the parties’ respective incomes, whether they have to capacity to increase their income, receive a bonus etc. The process ultimately aims to ensure that no stone is left unturned.

With all this in consideration the court has a great deal of flexibility to in their approach to financial settlement, which in turn allows the court to ensure (as far as possible) that an outcome reached is fair to both parties, and that neither party nor dependent children are left in need. However, this level of flexibility also carries its own disadvantages as it can be difficult for parties to envisage how a judge may determine the respective parties’ needs.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Changing your children’s last name after divorce

Posted on 8th November 202223rd January 2024 by McAlister Family Law

Changing your children’s last name after divorce

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, it is reported that the couple’s son Maddox doesn’t use Pitt as his last name on documents that aren’t legal, using Jolie instead – and wants to make this name change legal. Solicitor George Wilson looks at the options available in this country, and considers the wider implications of such a decision.

It is a matter of record that Maddox Jolie-Pitt has a troubled relationship with his father, especially after an altercation during a private jet flight to Los Angeles, five years ago. Although Maddox wants to drop his father’s name and go from Jolie-Pitt to Jolie, it’s reported that his mother doesn’t support this. What would be the situation here?

Changing your name by deed poll

Under English law, if you are over the age of 16 you can change your name by deed poll, and you do not usually need your parents’ consent to do this. Your parents also cannot change your name for you without your consent.

However, there are some exceptions to the above. If you are subject to

* A ‘Live with order’ whether that is a Child Arrangements Order or Residence Order in England, Wales, or Northern Island

* A Special Guardianship Order in England and Wales

* A Care Order (or interim Care Order) in England, Wales, or Northern Island

* Any other court order which says that your name cannot be changed

If one of the four instances outlined above applies to you, then you’ll need the consent from everyone who has Parental Responsibility for you, for as long as the court order remains in force. The order might be drafted so that it ends on a specific date. If not, then it’s safe to assume that it will come to an end on your 18^th birthday.

If one of the four orders outlined above applies to you, and someone with parental responsibility refuses to give their consent, then you would need to apply for an Order of the Court allowing the change.

What about changing a child’s name?

Anyone under the age of 16 is, in law, a “child”, which means whoever has parental responsibility for the child would have to change the name by deed poll on the child’s behalf. To change the name of a child resident in England, Wales, or Northern Ireland, or overseas, there must be consent from everyone with parental responsibility, and that consent must be in writing.

What happens if the other parent refuses consent?

If only one person with parental responsibility wants to change the child’s name, and everyone else who has parental responsibility for the child won’t consent, then the person who does want to change the name can apply to the Court for a Specific Issue Order.

Usually, unless the Court believes that the link to a family name is better broken, they will be reluctant to take away the name of one of the parents. Courts tend to regard a child’s surname as something fundamental, and an important part of their identity. Even if one parent has had no contact for many years, it’s still seen as important for a child to have the absent parent’s surname, because it may be the last remaining link to them.

That being said, there are very often more important things to consider than the continuation of the link of identity between a child and a parent.

It is worth noting that the closer the child is to the age of 16, the more weight the court will likely give that child’s wishes and feelings.

What if no one gives consent to change your name?

If you are under 16 years of age, want to change your name, but none of the people with parental responsibility for you will consent to it, then you can apply to the court yourself, again for a Specific Issue Order.

You will need to show the Court that you have tried to work out any differences between you and those with parental responsibility before you made the application. You’ll also need to get the Court’s permission to make the application as you’re a child. This is called “Leave of the Court”, and you have to apply for permission first, before the Court would hear your application. The older you are, the more likely the Court are to give their permission to make the application for a Specific Issue Order and you’ll have to prove that you have a sufficient understanding of what you are applying for.

Think carefully before making any decision

Maddox Jolie-Pitt wants to change his surname, but his mother disagrees with this. If he goes ahead however, it’s likely Maddox’s brothers and sisters will have a different surname and they may be unhappy with this. There are wider implications which need to be considered thoroughly. A divorce and various disputes that are still going on many years later is without question going to put a strain on any family. This is why all factors need to be considered carefully and we at McAlister Family Law are here to help should any of these issues affect you and your family.

If you are affected by any of the issues raised here, please get in touch today.

The legitimacy of Court-Appointed ‘Experts’ in parental alienation cases

Posted on 18th October 202224th January 2023 by McAlister Family Law

The legitimacy of Court-Appointed ‘Experts’ in parental alienation cases

Ruth Hetherington, Partner and Head of the Private Children Team at McAlister Family Law, and a Specialist in Children matters welcomes the announcement that the President of the Family Courts, Sir Andrew McFarlane will be overseeing an Appeal later this month in which issues of parental alienation and the use of experts will hopefully be reviewed.

What is parental alienation?

Parental alienation has been a hot topic for many years now. There is no legal definition of parental alienation, but the concept has evolved through cases that are heard in the Family Courts. Cafcass, the independent body appointed by the Court, defines parental alienation as ‘when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by one parent’.

In my experience sadly, it is becoming a very common feature in cases where parents have separated and one parent, whether directly or indirectly, displays to a child or children unjustified negativity aimed at the other parent.

What are the repercussions of parental alienation?

In such cases the relationship between parent and child can be lost altogether and the courts have been struggling to deal with such cases as quite often the alienation can be subtle, difficult to identify and can take place over several months if not years.

I have acted for both parents and children in these types of situations and I have seen first-hand the harm that children suffer as a result, which can be long term and affect children in developing healthy relationships themselves.

From my point of view trying to establish that parental alienation exists is a difficult task and as such the Courts have allowed Experts (generally Psychologists) to be appointed to assist in evaluating negative behaviours.

The use of Experts in cases of suspected parental alienation.

In the case that is to be overseen by the President of the Family Courts, Sir Andrew McFarlane, later this month, the qualifications of the Expert who was appointed, will be under scrutiny. The Expert believed parental alienation had taken place, but there is concern from the Court that this Expert may not have been appropriately qualified and was not regulated by any professional body.

In my opinion the regulation of court appointed Experts is something that needs to be addressed urgently. Therefore, the announcement of this Appeal is very much welcomed, and I sincerely hope that the concept of “parental alienation” is also addressed. Although professionals who deal with matters such as these have their own working hypothesis, there needs to be clear guidance given to both professionals, parents and anyone who cares for children about how the Court will deal with cases where a parent/carer of children behaviour is not what it should be.

What needs to change?

Parental alienation can have detrimental effects on a child’s mental health and wellbeing, right into adulthood. It is my view that parents/carers need to have their children at the forefront of their minds in everything that they say and do, to protect them from what will be a sad and upsetting experience of their parents separating. It is sometimes hard for parents to hide their own feelings and as a result they lose sight of the fact that their children will pick up on their parent’s behaviours.

In my opinion children often get outlooked when ‘battle lines’ are drawn between the parents, and it is for these reasons that the Court will be assisted by an Expert. The Court’s paramount consideration is always the welfare of the children, and it is therefore understandable that the need for the Court to be guided by Experts is sometimes required.

Final thoughts

It is my hope that as awareness is raised around the detrimental impact parental alienation can have on the whole family, particularly on the children, we will get to a point where the use of Experts will be evaluated and scrutinised to ensure that the Expert is right for that particular family, appropriately qualified and only used where absolutely necessary.

It is crucial for any parent who has concerns over child arrangements, or feels they are victim to parental alienation, to instruct a lawyer who is highly specialised in children matters. This will ensure that that all matters can be addressed and will ensure that the child’s welfare is at the heart of any decision that a parent may take, which will ultimately inform the Court’s overall final decision for the arrangements of any child.

Back to school – choosing a school between separated parents

Posted on 4th October 202224th January 2023 by McAlister Family Law

Back to school – choosing a school between separated parents

This time of year, Instagram is full to the brim of ‘first day of school’ pictures, whether it’s a brand-new school or little ones progressing to the next year. But choosing which school a child attends, especially between separated parents, can be an exceptionally difficult process. Here, Ruth Hetherington looks at what the Court may decide if separated parents can’t see eye to eye.

A child’s first day of school is no doubt a big day, whether it’s their first experience of school or going back after the holidays. It is the start of something new for both parents and for the child, a new chapter, either the start of their life in education or progression onto the next phase

The decision of which school a child shall attend is of fundamental importance. It will hopefully provide stability and security for the child during their childhood, and it will

no doubt shapes the child so as to inform their own decision making as an adult. Lifelong friendships will also be formed and therefore how your child progresses through their informative years of education can be a difficult and stressful decision for parents, particularly if there are separated and have different views on how their child should be educated.

Despite the importance that surrounds the decision of which school a child shall attend, sadly it is all too common for one parent to unilaterally make that decision which can be wholly wrong and at times unlawful. If both parents share parental responsibility, they then have a right to have a say in the decision-making process of how and where their child should be educated. This can often be an arduous task for parents, especially if one parent attempts to enrol a child into a school where the consent of the other parent has now been sought or secured.

If you share Parental Responsibility with the other parent , you should consult each other in respect of big decisions that relate to the wellbeing of your child. The decision of which educational placement a child shall attend is a decision where both parents’ views should be ascertained with careful consideration being given to both sides.

If you cannot agree which school your child is to attend, then you should make an application for a Specific Issue Order. This means that the Court is being asked to make the decision for the parents. If one parent tries to make the decision unilaterally, then you could be faced making an application to the Court for a Prohibited Steps Order, preventing the enrolment of your child in the chosen school of the other parent..

If the decision relating to a child’s school are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child having regard to the Welfare Checklist (s.1 (3) Children Act 1989) when reaching their decisions. A change of school will undoubtedly bring disruption and upheaval to a child’s life. Their support network and friendships may be broken especially if any change requires either party to relocate. Relocation brings another added complexity to these decisions, as they may also affect the time that one parent spends with their child. These decisions should not be taken lightly and wherever possible an agreed approach between the parents is preferable to a Court making the decision. However sadly we see this scenario on a regular basis and detailed and clear legal advice is also crucial.

The above issues identified are simply the ‘tip of the iceberg’ and of course there are other factors to consider including the ascertainable wishes and feelings of the child, dependant of the age of the child. But they demonstrate why big decisions need and require careful deliberation with the views of both parents being respected and considered.

Children born out of wedlock and separating parents

Posted on 22nd September 202224th January 2023 by McAlister Family Law

Children born out of wedlock and separating parents

The Office for National Statistics have recently reported that the majority of children born in 2021 in England and Wales were born out of wedlock. Here, Weronika Husejko looks at what protection is in place for unmarried couples with children should they decide to separate.

The ONS recently reported that approximately 51.3% of children were born to parents that were not married or in a civil partnership.

Whilst there has been a steady increase in children born out of wedlock over the last decade, it appears that this recent spike has been directly impacted by the COVID-19 lockdown. During the lockdown, many couples were prevented from marrying and entering into civil partnerships. As a result, far more children were born to unmarried parents.

What significance does this have?

The main impact of this trend is upon separation. This is because unmarried couples do not have the same legal protection as married couples when they decide to end their relationship.

Unfortunately, no length of cohabitation results in a married legal status. Common law marriage does not exist in England and Wales.

It is important that parents are aware of the fact that there is different financial provision upon separation for those who are unmarried. For example, married couples are entitled to apply to the Court for various Orders which unmarried couples cannot, such as spousal maintenance.

What can you do to protect yourself?

You may consider putting together a cohabitation agreement. This is an agreement between two people that decide to live together as a couple which can cover various areas including finances and child arrangements.

This type of agreement can also provide for finances upon separation. Unmarried parents can still be entitled to child maintenance and may be able to apply for various financial Orders in respect of the child from the other parent under Schedule 1 of the Children Act. However, a cohabitation agreement can provide unmarried parents with additional protection and certainty as to what the arrangements should be, both financially and with regard to arrangements for their child, in the event that the relationship ends.

It is essential that unmarried parents obtain legal advice upon separation in relation to their children and their options for financial support.

Choosing a new school – what if separated parents don’t agree?

Posted on 15th September 202224th January 2023 by McAlister Family Law

Choosing a new school – what if separated parents don’t agree?

This week we’ve seen Instagram full to the brim of ‘first day of school’ pictures, whether it’s a brand-new school or little ones progressing to the next year. But choosing which school a child attends, especially between separated parents, can be an exceptionally difficult process. Here, Paul Reay looks at what the Court may decide if speared parents can’t see eye to eye.

A child’s first day of school is no doubt a big day, whether it’s their first experience of school or going back after the holidays. It is the start of something new for both parties, for the child, a new chapter, either the start of their life in education or progression onto the next phase. For parents, it is potentially the end of what has been an extremely demanding summer holiday. No doubt, if the camera turned to take a picture of the parent waving off their beloved child, there would be a glisten in their eye at the prospect of being able to have 10 minutes peace.

The decision of which school a child shall attend is of fundamental importance. It is the reality that a child will form close bonds with their classmates, some who could go on to become friends for life. I know from my own experience that the majority of my closet friends I met at school became lifelong friends, some of which became my best man and groomsmen.

Despite the importance that surrounds the decision of which school a child shall attend, sadly it is all too common for one parent to unilaterally make that decision which can be wholly wrong and at times unlawful. Separated parents can often become stuck when making the all-important decision, especially if there are differences in Parental Responsibility. If you share Parental Responsibility with your spouse, you should consult each other in respect of big decisions that relate to the wellbeing of your child. The decision of which educational placement a child shall attend is a decision where both parents’ views should be ascertained with careful consideration being given to both sides.

In the circumstance where both parents share Parental Responsibility, but one parent has made the decision on which school the child should attend, without the input or consent of the other, it could be demand unlawful.

Only this week, I was required to issue an urgent application to the Court, seeking a Prohibition Steps Order, preventing a Mother from removing a child from his long established place of education, just because she wanted to up-sticks and move to another part of the country with little or no notice given to my client. Despite raising his opposition to any proposed move his views were not respected, sadly discarded instantly, which happens all too often between separated parents.

If matters relating to a child’s school are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. A change of school will undoubtedly bring disruption and upheaval to a child’s life. Their support network and friendships may be broken especially if any change requires either party to relocate. Geography may require any previous agreement to be tweaked and if it is going to be the case that the child can’t see a parent often, then discussions need to be had about how this is managed; does the child have time in the school holidays, do they have the full week in the October half term?

The above issues identified are simply the ‘tip of the iceberg’ and of course there are other factors to consider including the ascertainable wishes and feelings of the child. But they demonstrate why big decisions need and require careful deliberation with the views of both parents being respected and considered.

How are holidays divided between separated parents?

Posted on 8th September 202224th January 2023 by McAlister Family Law

How are holidays divided between separated parents?

How holidays are divided between separated parents can often be a real concern, but what if parents cannot come to an agreement? Here, George Wilson looks at the factors that the family court will take into consideration when deciding what is in the best interest of the child.

How holidays, be those of a religious nature, linked to the school calendar, or something else, are divided can be a real concern for many separated parents. Many parents have struck a balance in terms of agreeing where, and with whom, a child will spend such holidays. However, sometimes separated parents will look to the family court to decide and help them, and their children. It is first important to note that any determination that the court makes in regard to holiday arrangements will take into account the specific facts of each individual case and look squarely at what is in each child’s best interests.

Often, parents who live close to one another can often reach an agreement between themselves, whereas parents who live many miles away from one another will simply not be able to achieve such an outcome. It is almost impossible to say, with any certainty, how the court would deal with each individual case without a full knowledge of the child(ren) involved, the history of the parents, and any arrangements that are already (or have been) in place. It is possible to provide some insight as to how the court might deal with certain holidays.

In terms of the school holidays, separated parents must consider the summer holidays, Easter, and half-terms.

Often, the summer holiday (being the longest school holiday) will be split on a week on, week off basis, so that there is some routine for the child(ren) concerned and so that both parents are able to spend adequate time with them. That being said, in some cases it may be that a week with each parent, and then two weeks with each parent, may work better due to overseas travel or other plans. It is rare for the summer holidays, assuming they are 6 weeks long, to be divided down the middle on 3 weeks on, 3 weeks off basis. In circumstances where one parent has not spent extended duration’s of time with the child(ren) for a long period, it may be that the court determines that there is some form of stepped plan to arrive at prolonged holiday contact.

In relation to the half-terms, many parents will simply agree to have a set half-term holiday, with the other parent taking either the remaining two holidays or agreeing to take one and divide the third. Other parents may opt for an equal division of all of the half-term holidays, with a handover of the child(ren) taking place at some point during the holiday itself. It really does boil down to what is in the best interest of the child(ren).

Easter and Christmas are slightly more complex given the religious nature of the holiday(s). Easter is often divided in the same way that the summer holiday might be dealt with, with each parent taking a set period of time with the child(ren) depending on working plans and what is best of the child(ren). Christmas can cause further issues given that the holiday is held in such importance for many people. A further blog could be written on Christmas holiday arrangements in isolation; however, many parents will opt to alternate between Christmas and new year on an annual basis. Be sure to look out for a further blog in relation to how such an arrangement might be workable closer to the festive season.

Where specific arrangements for holidays have been put into place for holidays, the usual arrangements will normally be suspended as to provide both parents with sufficient time with the child(ren), and free from the requirement to make the child(ren) available to the other parent.

Holidays are a complex issue, that many parents overlook when reaching an agreement in relation to spending time with their child(ren). It is important to consider the importance of holidays, and how child arrangements will be worked and amended around these periods. Should you wish to discuss matters involving child arrangements around the holiday periods, do not hesitate to contact a member of our specialist children team.

Can my children go on holiday with their grandparents if my ex does not consent?

Posted on 26th August 202224th January 2023 by McAlister Family Law

Can my children go on holiday with their grandparents if my ex does not consent?

Taking children on holiday can often be more challenging between separated parents, but can grandparents take their grandchildren on holiday, and how easy is it in a separated family? Here, Michael Compston looks at court orders, parental responsibility, and offers advice to grandparents looking to plan a holiday.

Firstly, who can take children on holiday? This blog assumes that you and your ex- have separated and no longer live together, but that there is no court order in place; if you do have a court order, you should refer to the warning notices within that order.

Only those individuals with parental responsibility have the capacity to make decisions on who may take children out of the country on foreign holidays. Parents acquire parental responsibility most typically at birth; the mother will acquire it by virtue of being the child’s mother, and the Father will acquire parental responsibility if he is married to the Mother at the time the child’s birth or he is named on the child’s birth certificate as the Father. Similar provisions apply for same-sex couples.

With no court order in place, permission of those with parental responsibility is required before taking children on a foreign holiday. This is the case regardless of who the child lives with. Consent should not be unreasonably withheld – why would a parent not want their child to experience a foreign holiday – but if the holiday is at risk of putting a child in danger, or there are concerns about the children not returning, then consent may be withheld. Consent is often withheld because the ex- is worried about their routine time with the child being interrupted. It may be helpful to consider how any lost time could be made up, if consent is being withheld, as a means to broker an agreement.

Grandparents typically don’t have parental responsibility for children – there are exceptions to this, of course, but we are looking at the general position here. Those with parental responsibility are free to delegate childcare to who they consider appropriate to provide such childcare. We see this when parents work longer hours than children are at school or nursery and grandma or grandad need to collect the children and provide childcare for a couple of hours. We don’t often think about the action of delegating that responsibility as it is simply what many working families do as part and parcel of 21^st century life; everybody pitches in for the childcare, especially when both parents work full-time, or close to full-time jobs.

It is advisable for grandparents to plan their holidays well in advance and they must ensure that they have permission of all individuals with parental responsibility. Written consent is not strictly a legal requirement but it would be a very good idea to have something from everyone who has parental responsibility, in writing, that can be shown to any customs officials querying the legal right to take the children on holiday. This is particularly important when the children have a different surname to the grandparents.

If consent is withheld from any individual with parental responsibility, then the grandparents can apply to court for a Specific Issue Order. They will need permission to make such an application, granted by the court, but getting permission to make the application is usually a formality – this is not the same as permission being given to take the children on holiday. The court will list the matter for a Final Hearing where the parties – grandparents and those with parental responsibility – will give evidence in front of a Judge and have the opportunity to cross-examine (ask questions) of the other parties before the Judge makes a final decision.

The Judge will consider first and foremost what is in the child’s best interests. Judges will encourage the parties to come to an agreement but, if no agreement is reached, then they will decide what is in the child’s best interests and make an order accordingly.

Separated parents and international travel during Covid-19 restrictions

Posted on 18th August 202224th January 2023 by McAlister Family Law

Separated parents and international travel during Covid-19 restrictions

As of August 2022, the Covid-19 pandemic continues to affect international travel, for most, this can mean a last-minute rush to the airport to avoid isolation, but for separated parents the added stress of acquiring consent to travel with their child from the other parent can make holidays even more challenging. Here, Heather Lucy explains how the ongoing Covid-19 pandemic can play a role in organising a holiday between separated parents.

With holiday season in full swing, many parents want to take the opportunity to take their children on holiday. For most families this tends not to be much of an issue, but for families with separated parents there are a few more things to consider. Firstly, if one parent wants to take a child abroad, whether that be permanently or temporarily, the other parent with parental responsibility will need to give consent. However, anyone with the benefit of a Child Arrangements Order, stating that their child is to ‘live with’ them, is legally allowed to remove the child from England and Wales for a period of less than 28 days without the consent of the other parent, even though they have parental responsibility.

What about Covid-19?

As of August 2022, providing you and your child are fully vaccinated, there are 172 countries open to you worldwide, 28 countries that require you to test before you travel, 3 countries that require you to quarantine upon arrival, and only 24 countries fully closed. On the other hand, if either you or your child are unvaccinated or haven’t received all of your vaccinations, only 87 countries are open to you, 71 require you to test before you travel, 19 countries require you to quarantine upon arrival, and 50 countries are fully closed. However, the status of each of these countries so called ‘openness’ can change at any given point.

It is understandable then why any parent may have some reservations around their child travelling abroad with their ex-partner, not least because of the fear that once in the destination country, your ex-partner and child might face a period of self-isolation upon their arrival. Again, changes in the status of ‘openness’ can happen at any time and parents can be caught out with an unexpectedly long stay and issues with accommodation. On top of this, there is the ever-present worry around the risk of the child either contracting Covid-19 or transferring it.

Written consent.

If you do wish to travel abroad with your child, the first step is to seek written consent from the other parent before travelling. If this is something which may prove difficult, try to have an open discussion with the other parent; understand and alleviate any fears that they may have by confirming:

Travel dates and times
Where you will be staying
Explain how you will keep the child safe throughout the holiday
Explain the rules around quarantine and testing if you are traveling to a country where this is required

Compromise and flexibility is key, but what happens if you cannot come to an agreement or if your ex-partner gives consent but then changes their mind?

You can make an application to the court for a Specific Issue Order stating that you can remove the child from the country and the court will make the final decision. On the other hand, if you are the partner who is not traveling and you haven’t given consent and are worried that your ex-partner will travel with your child regardless, you can apply to the court for a Prohibited Steps Order to prevent them from traveling. If you are in this situation, you should seek legal advice urgently as this may also be considered child abduction.

Will the court hear this matter in time?

The court is dealing with a significant amount of cases and there is no guarantee that it will be able to deal with an application such as this as quickly as might be necessary. Our advice is to deal with this matter before it becomes an urgent one. There are alternatives to making a court application, such as engaging your solicitor and seeing if the matter can be negotiated or referring to mediation to see if an arrangement can be reached.

If you are affected by any of the issues outlined here, please get in touch with our specialist teams today.

Can I stop my children going on holiday with my ex’s new partner?

Posted on 11th August 202224th January 2023 by McAlister Family Law

Can I stop my children going on holiday with my ex’s new partner?

With the school holidays here and plans being made for families to go abroad or on holiday in the UK, one of the most frequently asked questions is where a parent stands with their children going on holiday with their ex’s new partner. Here Melissa Jones explains the factors at play when the Court decides whether or not a parent can prevent their children from going on holiday with their ex’s new partner.

Perhaps you have not yet met your ex’s new partner and therefore know little about them or maybe the two of you didn’t get off on the best foot.

Before you make any decisions, with family law cases concerning children, it is always best to start from their point of view and think reasonably as to why you might object to the partner tagging along. You might be worried that the new partner has only just come on the scene and is therefore unfamiliar with your children. This is understandable but is unlikely to convince a court that this holiday should not happen if the partner was to attend.

But why should I miss out on time with my children and the new partner gets to spend time with them?

This is understandable, but the court is becoming more familiar with “separated families” or “blended families”. The court will appreciate that parents move on after separation and each should be afforded the opportunity to go on holiday as a family. The focus in this scenario is to ensure you arrange your own holiday(s) with the children so you can enjoy quality time with them, one on one.

It may be that in the future, you may also want to go on holiday with the children and your new partner and you would ideally want this to be fully supported by your children’s other parents.

Can I get a court order to stop my ex taking the children on holiday with their partner?

If there is an Order in place, usually a Child Arrangements Order (formerly a Residence Order) then a child can be taken abroad for up to a month without needing the written consent of the other parent.

Parental Responsibility

If there is not a court order in place, what first needs to be considered is whether you have parental responsibility. If both parents share parental responsibility, then what is often overlooked is that your partner will need your written consent in order to take the child out of the United Kingdom (Section 13 (2) of the Children Act 1989). Failing to do so could lead to that parent committing an offence of abduction for which they can be fined, imprisoned or both.

If you object to the partner attending the holiday, you are essentially objecting to the other parent taking the children on holiday. As such, you can make an application to the court for a Prohibited Steps Order, to prohibit the other parent taking the children on the holiday.

Likewise, if the other parent believes your consent is being unreasonably withheld, then they can make an application to the court for a Specific Issuer Order, for permission to take the children on holiday in the absence of your consent.

In either scenario, the Judge will take into account the individual circumstances of each family. The Court rarely denies permission to take a child on holiday abroad where there is an existing relationship between the parent and child and the plans are reasonable in all of the circumstances. The court is unlikely to implement a restriction against the new partner attending in the absence of safeguarding concerns as it is a dispute between the two parents. Any Prohibited Steps Order or Specific Issue Order will relate to the parent either being given permission to go abroad with the children or being prohibited from taking the children on holiday, not in relation to the new partner. It would be very rare for a third party to be named in either order.

When the court denied permission it is usually in circumstances where the plans are patently not in the child’s best interests or where the Court deems the child may not be returned to the country.

The child’s best interests

If only one parent has parental responsibility, and again there are no Court orders in place, then permission is not necessarily needed to take a child abroad on holiday. That being said, and with your child’s best interests at heart, consultation should always take place with the other parent (if they are in regular contact with the child) in order to reach an agreement that is right for everyone.

Open lines of communication

What is important is communication and trying to agree any travel arrangements between you and the other parent in advance. This is not always possible, but if it can be achieved, it will avoid any applications to the court being necessary.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.