A Child’s Gender Identity – Who Decides?

Posted on 28th July 202328th July 2023 by McAlister Family Law

A Child’s Gender Identity – Who Decides?

NHS statistics indicate that referrals for children wishing to change genders have rocketed in the past 5 years, initiating worldwide debate as to how to respond to this in a societal and legislative sense. Here, Eleanor Drury looks at how parents, schools, and the government approach the gender identity of children and the implications teachers face without the government’s promised guidance.

A child’s gender identity, who decides? A proposed bill in California, Assembly Bill 957, also known as the Transgender, Gender-Diverse and Intersex Youth Empowerment Act, would seek to brand parents as abusive if they refuse to affirm their transgender child’s identity and let children’s social services intervene in instances of the same.

The act stresses that it is part of a child’s health, safety and welfare for parents to support their child’s self-proclaimed gender identity and allows the courts to consider parental responses to these sorts of issues when determining custody disputes, further encouraging the judiciary to strongly consider that affirming a child’s gender identity should fall within the realms of best interest decision making.

Here in the UK, legislators have taken a contrasting approach, with Suella Braverman MP stating that schools have no legal obligations which require them to address children by their preferred pronouns or names, nor accommodate them in opposite sex toilets or sports teams. In addition, the UK government are rumoured to be introducing new guidance which instructs teachers not to use a new name or pronoun, as requested by the student, without obtaining parental consent first.

Of course, the government must consider the implications this may have on children, with some educators accusing the government of creating an ‘atmosphere of fear’ whereby transgender children cannot access support from their teachers, along with potentially opening the floodgates for breaches of confidentiality claims. In addition, guidance such as this creates a particularly tricky environment to navigate given that it is common across schools nationwide for teachers to allow, and join in with, children being referred to by a name different to that which they were registered at birth with, such as a nickname. Schools will be no doubt be keen to ensure that they do not fall risk to direct discrimination complaints.

In modern society, the issue of children and gender identity is likely to continue to hit the headlines as reports of transgender and gender-fluid children soar. Government guidance is desperately needed in order to provide clarification in this controversial area and allow schools some relief from being caught in the crossfire of opposing views and beliefs. Last month, teachers at a school in Sussex were subject to controversy following the publishing of a secret recording in which teenage pupils were debating whether a person could identify as a cat, with one student brandishing this as ‘crazy’, only to be told by the teacher that these views were ‘despicable’, adding that if they didn’t like this, they need to find a different school. It appears that teachers are understandably fearful of what they say, and the consequences of the same, and therefore struggle to respond to students in a sensible and honest way. Without clear boundaries in this area, it can be argued that debates such as this only delegitimise and stigmatise young transgender people. The Association of School and College Leaders (ASCL) state that this underlines the need for the government to publish its promised guidance on children and gender identity, which the ASCL sought over 5 years ago.

Whilst it is extremely unlikely that any future guidance published in the UK will be so inclusive as to include children who wish to identify as animals, It will certainly be interesting to see if clarification will finally be provided for educators, and whether UK legislators are influenced by the differing proposals of the US in respect of gender dysphoria. Could it be that UK children’s social care may be forced to intervene in instances of disagreement between parent/guardian, and child?

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

Grimes, X Æ A-Xii and not identifying as ‘mum’ – do right and wrong parenting styles exist?

Posted on 16th February 202316th February 2023 by McAlister Family Law

Grimes, X Æ A-Xii and not identifying as ‘mum’ – Do right and wrong parenting styles exist?

The futuristic pop star, Grimes, and her equally eccentric, billionaire boyfriend, Elon Musk, are one of the most famous pairings in the world for many reasons. One of which, is their unique parenting style. Here, Nikki Bradley looks at how Grimes and Musk coparent their children and discusses why it’s okay to break the parenting ‘norms’.

She has been described as the visionary inventor of “space opera” and he as a genius supervillain. We don’t quite understand them or the nature of their relationship and despite reports they are no longer together, Grimes herself has described their relationship status in the past as “very fluid”. Our curiosity for the pair only grew when their first child together, X Æ A-Xii, was born in May 2020. The pair have since welcomed their second child, Exa Dark Sideræl Musk, born in January 2022.

A quick google of “Grimes and Elon Musk” shows the top results that follow are “baby name”, “baby”, “kids”. The otherworldly names of their children and the manner of their parenting is striking. Their children are being raised differently and the world wants to know more.

“Maybe he can sense my distaste for the word ‘mother’… I can’t identify with it”

Grimes has spoken openly about motherhood and parenting, including her decision to live apart from Elon Musk despite being romantically attached and raising two children together. Although their non-conventional parenting style does not come as surprising, one of the most shocking revelations came when Grimes revealed to Vogue that her son calls her by her real name, Claire.

She went on to explain that whilst she respects the title “mum”, it is not a term she identifies with, and she believes her son can sense her distaste for it.

“I love playing devil’s advocate, questioning my beliefs, making hard pivots”

By her own above admission, Grimes thrives off being an unconventional boundary pusher. However, when it comes to parenting and children, quirky attitudes and behaviours scare people. We may regard the age we live in as progressive, but society’s view of parenting remains incredibly conservative.

Grimes is right to challenge this.

The world thinks she and Elon Musk are weird because their style and approach to co-parenting does not fit society’s definition of “normal”.

There is no “normal” when it comes to parenting, nor is there a “perfect” way to raise your child. Children need love, protection and nurturing and a happy child will be raised in a household that keeps them safe and emotionally secure.

First time parents in particular often feel an overwhelming pressure to do things “right”. You are doing it “right” as long as you are meeting your child’s needs and acting in their best interests. The road you take to achieve that is up to you entirely.

Breaking the mould

Being a parent is not about trying to make the rest of the world happy or doing what other people tell you is correct. Being a parent is about doing right by your child and nobody else but you knows how best to do this. If you try and fit another person’s parenting mould it will feel uncomfortable, and your child will sense it. You do not want to end up a square peg in a round hole.

Do not be afraid to choose your own parenting path. Even if you are in a committed relationship with your co-parent, it may be that the “apartners” approach (committed romantically but living apart) as favoured by Grimes, is right for you and your children. It may not be a conventional but if you and your children are happy, nothing else matters.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

How to cope with long-distance parenting

Posted on 2nd February 2023 by McAlister Family Law

How to cope with long-distance parenting

In an increasingly mobile world following the Covid-19 pandemic, where more of us than ever are moving out of cities as we work from home or in a hybrid fashion, how does this impact parents who live a significant distance away from the other parent? Here, Michael Compston looks at how long-distance parenting can work though direct and indirect contact, and how the school holidays can be your friend.

During the Covid-19 pandemic, nearly half[1] of all adults were working from home at least some of the time, and 8 out of 10 adults indicate that they want to work from home in a hybrid manner moving forward.

This has led to an exodus of city dwellers as families look for more space and greener living, now that they are not as constrained by the 9-5 office job that they once were.

This will likely lead to an increase in children being relocated and, ultimately, more instances where there is a significant distance between both parents. Children can only attend one school, so how can parents agree arrangements that work for the child/ren?

The reality is that, whilst both parents will have involvement in the child’s life, the child will have one ‘home’ such that the child lives with one parent and spends time with another.

Perhaps even more so than under other circumstances, communication between the parents is vital. The parent with whom the child lives must ensure that the child’s relationship with the other parent is protected and given the chance to develop even with the distances between the parents. There are several ways that this can be done:

Direct contact

Whatever the distance, we will all travel for our children. If you find yourself in a situation where you’re the parent that lives a significant distance away from your child, any time you get with your child will be precious. It will not be suitable, for example, to return the child to school on Monday given the distances involved. Instead, think about maximising your time with the child; if you can work flexibly on a Friday to arrive at school for collection, that means nearly a full weekend can be enjoyed by all.

Whilst the child lives in only one home, it is important that they understand their other parent has a home of their own. Contact should be encouraged to take place at the address of the parent with whom the child does not live, where possible.

This might not be possible during term-time if the parties live a very long way from each other, such that the journey time is greater than 6 hours.

Indirect contact

Modern technology allows us to keep up to date like our parents could not have dreamed of 30 years ago. Instant communication is possible through FaceTime and WhatsApp video calls, which is crucial to maintaining relationships over long distances.

These calls should be private; if you are the parent with whom the child lives, it is important to respect the relationship between the child and the other parent and to not intrude unnecessarily unless you have concerns about the content of the calls.

Regular video calls can be a useful tool in maintaining relationships over long distances.

School Holidays

The school holidays afford a prime opportunity for the parent with whom the child does not live to have some real, quality time with that parent. The holidays can be shared equally or perhaps even in favour of the non-resident parent to account for the disparity in contact during term-time.

Religious festivals can also be shared. Schools close for two weeks at Christmas and Easter generally, and also have provisions in place for other religious festivals such as Eid and Yom Kippur.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

[1] https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/ishybridworkingheretostay/2022-05-23

Maya Jama receives legal letter demanding £800,000 ring back

Posted on 26th January 2023 by McAlister Family Law

Maya Jama receives legal letter demanding £800,000 ring back

Maya Jama receives legal letter demanding the return of £800,000 engagement ring to ex-fiancé Ben Simmons. Here, Lisa Brown looks at what happens to the ring if an engagement is called off.

The new Love Island host and basketball player ended their relationship last summer after Ben’s proposal to Maya over the Christmas period. This week, Maya reportedly received a letter demanding the return of Ben’s engagement ring, but if one half of an engaged couple calls off the wedding, what happens to the engagement ring?

Not every engagement leads to a wedding, and even for those who do get married, there may be a divorce down the line. As divorce lawyers, it’s not unusual for the soon-to-be-ex-couple to argue about who keeps the engagement ring, particularly if the ring was expensive.

One half of the couple will put forward the argument that they bought it, so they own it. The other half of the couple, naturally, will advance the argument that the ring was given to them as a gift, so they can claim rightful ownership.

What does the law say about engagement rings?

The Law Reform (Miscellaneous Provisions) Act 1970 states:

“The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.”

This means that unless there was an agreement to return the engagement ring if the wedding was cancelled, then the recipient is under no obligation to return the ring.

What if the engagement ring is a family heirloom?

If the engagement ring is a family heirloom, perhaps passed down through the family for many generations – and the recipient was made aware of this at the time – then it may be easier to succeed in an argument that the ring should be returned if the wedding is called off. However, no matter how sentimental the ring may be, if there has been no agreement made that the ring must be returned to the proposer, the Act still stands.

How do you ensure that you keep the ring if things don’t work out?

Many couples now enter into a prenuptial or postnuptial agreement. If the parties feel really strongly about it, provision for the fate of the engagement ring can be included in the agreement as a specific term should the couple divorce. Otherwise, the same general rule applies: the engagement ring is an absolute gift (and therefore not returnable) unless there was a condition made about the ring being returned when it was given.

So, if you are planning to ask your loved one to marry you this Valentine’s Day, maybe consider the future of the ring. We know that thoughts of break-ups and divorces should be the last thing on your mind, but if the ring has a lot of sentimental value, it might be worth protecting it in some way.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

School admissions season – what happens if we disagree?

Posted on 19th January 2023 by McAlister Family Law

School admissions season – What happens if we disagree?

January is never an easy month. It is one of the few times in the year where two 31-day months follow one after the other, spring feels like a lifetime away and pay day even further. On top of that, it’s school administration season. Here, Michael Compston looks at what happens if parents cannot agree on a school and how the choice can be made both inside and outside the court.

The local authority deadlines vary from authority to authority, but generally primary school deadlines are in place for the middle of January. Miss that deadline and your child runs the risk of not being accepted into their first-choice school and the application being considered as a late application.

Secondary school applications tend to run on a slightly different timetable, with deadlines being earlier in the academic year. However, we find that secondary school applications follow a more structured process as children/parents tend to be guided through this by the primary school during the child’s final year.

Children getting ready for primary school do not always have that information or guidance readily available, so this blog aims to consider how to resolve any issues arising out of primary school admissions.

Most if not all Local Authorities now process these applications online. The process is fairly straightforward; you go to the prospective schools, decide which ones you like or do not like, then select those schools in preferential order.

But what happens if you and the child’s other parent disagree? If you both have parental responsibility for a child, then it is incumbent on you both to come to a decision together. One of you may favour the school with strong academics or greater extra-curricular provision, whereas the other favours the school with more green space or a better pupil to teacher ratio. If you cannot agree on the preference order, how do you resolve matters?

Outside of court

The first solution is a simple one. Talk to each other. It might sound simple but actually discussing your preferences and why you think one school is better than the other can open up topics for discussion that you might not have considered.

If you are not able to reach a decision by discussing the matter between yourselves, then another option is to attend mediation. Mediators are trained to facilitate discussion between parents across a broad range of matters, not just limited to discussions around child contact. They can offer a neutral perspective and encourage back and forth discussion between the two of you.

Court proceedings

Should mediation not work, then the last recourse is to ask the court to make a decision by making a Specific Issue Order to decide that specific point. Alternatively, if the other parent is refusing to allow you access to the application and is preparing to submit the application themselves, it could be an application for a Prohibited Steps Order to prevent them submitting the application. Either way, both applications would be considering the same thing – what is in the best interests of the child.

This can be a costly exercise and a time-consuming exercise too. You are essentially asking the court to make a decision that, ultimately, is about what is best for the child. The court has not met your child, the court does not have the knowledge of the schools that the parents have, so you must think carefully before asking the court to intervene and make a decision that will have a long-lasting effect on your child’s education; if the child remains in their school, they will be in primary for seven years or secondary for five, so it is an important decision.

If you do end up in court proceedings, the court must consider what is in the child’s best interests. The court would almost certainly say initially that this is a decision that the parents should come to themselves; after all, the parents know the child better than the court. You would most likely both need to prepare witness statements on why you consider that your order of schools is the most suitable and then be prepared to argue your case in front of a judge.

Whilst this is very much a last resort, it is important to remember that this is the last recourse for the court. If you cannot agree, the court will likely want order you both to give evidence. It is far, far better if you can resolve matters between yourselves, with or without the help of a mediator, rather than reverting to the court process.

One Final Thought

Throughout all of these avenues for resolving any dispute on school choices, it is important to remember that the ultimate decision on where a child goes to school is down to the Local Authority in terms of state schools. The order of preferences is still important, as it will help to inform the decision of the Local Authority, but the decision is ultimately one for them.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

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.