Payne Hicks Beach

Payne Hicks Beach

26 May 2021

Summer Holidays 2021 - Don’t wait until the 11th hour!

We are now some 15 months into the global pandemic and, whilst restrictions at home are easing, international travel remains a thorny topic.  What does this mean for separated parents who wish to travel overseas with their children during the forthcoming school holidays?

What is the current government advice?

On 17th May the restrictions on overseas travel were lifted.  The government website records that, "There are no longer any restrictions on leaving England to travel internationally, however to protect public health in the UK and the vaccine rollout, you should not travel to countries or territories on the red or amber lists."  Presently the "green list" is laughably small but there is an expectation that it will be expanded in time for the school summer holidays (subject to the Indian variant causing further issues).  There is also the possibility that certain countries will accept a "vaccine passport", allowing travel without quarantine for fully vaccinated individuals.  It is not yet clear if the UK intends to operate such a scheme but it seems likely given that it has now added an individual's vaccine status to their health record via the NHS app.

Parents may come into conflict over whether travel is safe at all, whether the incidence of new variants in the proposed destination should be an issue and whether families should endeavour to travel at the same time, sharing the period overseas between them to avoid multiple tests and quarantine periods.

Travel to a green list country

On your outbound journey you must comply with the requirements of the country you are travelling to.  On your return you must take a Covid test before you travel back to the UK and you must have booked and paid for a day 2 test on your return.  Provided that test is negative there are no further requirements to quarantine.

Travel to an amber list country

Before you travel back to England you must take a Covid test and book and pay for Covid tests to be taken on your return on days 2 and 8.  You must complete a passenger locater form.  You must quarantine at home for 10 days after your arrival in the UK.  You may be able to end quarantine early if you pay for a private Covid test through the Test to Release Scheme (you can test on day 5 and if the test is negative you can be released from quarantine early.)

Travel to a red list country

Travel to a red list country should be avoided.

You may only return to the UK from a red list country if you are a British or Irish national or have residence in the UK.  You must take a Covid test before your flight, book a quarantine hotel package (including 2 Covid tests) and complete a passenger locator form.  On arrival in the UK you must travel directly to your quarantine hotel and remain there for 10 full days (the day of arrival counts as day zero.)

These rules require separated parents to consider very carefully their arrangements for the summer holidays if they wish to travel separately with their children.  The rules need to be carefully complied with to avoid potentially incurring fines and the additional costs of testing need to be factored into travel plans.

Consider dates for travel well in advance

Parents will need to look carefully at the requirements of the travel categories above and ensure that they plan dates for the summer taking into account the need to allow for the full quarantine period to elapse before they are due to travel again with the other parent.  The author advises against relying on a positive Test and Release result when planning dates.  For example, a family who travelled to Italy for the Easter holidays returned to the UK for the children to start the new school term based on them all being able to rely on the Test and Release scheme and exit quarantine on day 5.  Whilst they all tested negative they were not permitted to leave quarantine early as someone who travelled on the same plane as them had subsequently tested positive.  The children therefore missed their first week of school.  An alternative mechanism might be for the family to travel together or for the children to remain in the overseas country with the parents completing the handover there to avoid the children having to travel and quarantine more than once.

Agreements and ADR

Parents should engage in discussions about plans for the summer sooner rather than later.  In the event that there is a dispute about overseas travel that cannot be resolved between the parents directly then mediation or another form of alternative dispute resolution ("ADR") should be the first port of call.  However, if the parties cannot agree then the court will have to be asked to adjudicate on the issue which may take a considerable period of time.  It is important that these issues are considered as early as possible as if an application to court is necessary it will need to be made without delay.

If my husband wants to take my children to France to see family can I stop him?

If both parents have parental responsibility and there are no Children Act orders in place then neither parent can take the children abroad without the consent of the other parent.  To do so would amount to child abduction. If there have been Children Act proceedings then technically a person with a "lives with" order in their favour can take the child out of the jurisdiction for up to a month without permission.  However, if the other parent objects then it is open to them to apply for a Prohibited Steps Order to prevent the parent travelling.  It is important to address the issue of travel with the other parent well in advance of any proposed travel.

In the event that the parents cannot agree about whether children can travel then an application may have to be made to the court under section 8 of the Children Act 1989 either for permission to travel with the children (by way of a Specific Issue Order ("SIO") or to prevent a parent from taking the children away (by way of a Prohibited Steps Order ("PSO").

It is anticipated that many parents will want to travel to Europe to see family and it is crucial that discussions take place as soon as possible to identify if there is likely to be an issue about travel.

What will the court consider on an application for a SIO or PSO?

When the court considers any issue relating to a child's upbringing then the welfare of the child will be the court's paramount consideration.  In considering what is in the best interests of the child the court must have regard to:-

  • The ascertainable wishes and feelings of the child, taking into account their age and understanding;
  • Physical, emotional and educational needs;
  • The likely effect of any change in circumstances;
  • Age, sex, background and any relevant characteristics;
  • Any harm which he the child has suffered or is at risk of suffering;
  • The capability of each parent and any other person the court considers relevant, of meeting the child’s needs;
  • The range of powers available to the court.

Ultimately, the Court will look at what is in the best interests of the particular child or children it is concerned with in light of the factors set out above.

Is the court likely to make orders permitting a child to travel?

The current rules permit only a very limited degree of travel under the green list rules.  It is likely that a court would be sympathetic to a parent wishing to travel to a green list country provided that they can demonstrate that they have their tackle in order and will comply with all necessary safety precautions.  However, every case will turn on its own particular facts.  For example, if a child has particular health needs that render them vulnerable then that is likely to militate against travel.  It seems very unlikely that the court would sanction travel to a red list country without a very compelling reason.  The more likely range of debate is likely to fall around travel to countries on the amber list.  There are large numbers of international families in the UK who have been unable to travel to countries such as Italy and France to see grandparents and extended family for many months.  Where one party wishes to take the children to visit family and is prepared to follow the requirements how will the court react? 

As indicated above, each case will turn on its own particular facts and the court will focus on the particular concerns of the parent who objects and safeguards that can be put in place for the child.  It is also notable that whilst most adults will be fully vaccinated by the summer, the same cannot be said of children and it is not yet clear how this will impact on their ability to travel under proposed vaccine passport schemes.

It is clear that overseas travel this summer is likely to be fraught with difficulties - both practical and financial and parents should be entering into open discussions at the earliest possible opportunity to ensure that any disagreements can be resolved in good time for holidays to take place.

Article by Kelly Gerrard, Legal Director and Knowledge Development Lawyer in the Family Department. For further information, please contact Kelly Gerrard by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4361

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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