Back to basics

In Scotland, no person can take a child (who ordinarily lives in Scotland) outside the UK without the consent of both parents who have parental responsibilities and rights.   Accordingly, if a parent wants to take their child on a foreign holiday they need your consent to do so if you are a parent with parental rights and responsibilities.  If you do not agree with the holiday being proposed, you can withhold consent (or withdraw consent that has previously been given).  You should make it clear in writing that you do not consent to the proposed holiday and give the reasons why.

Likewise, no person can retain any child out with the UK without the consent of both parents who have parental responsibilities and rights. If your child is currently outside the UK and you want the child to be returned, you should make this known to the other party and the child should be returned immediately.

Holiday without consent?

What should you do if you are concerned that the other parent may take the child abroad without your consent?  In terms of the Child Abduction Act 1984 it is a criminal offence for anyone to remove a child from the UK without the consent of a person who has parental responsibilities and rights in respect of the child.

If you’re worried about your child being taken to an affected or at-risk area without your consent, you can apply to the court urgently for an Interdict (called an Injunction in England) preventing this.  As part of those proceedings, the child's passport can be held by the court and in exceptional circumstances port alerts can be put in place. 

Consent being unreasonably withheld

If the other parent will not agree to a foreign holiday without good reason, you can apply to Sheriff Court for a specific issue order permitting you to take the child abroad.  The court can also make orders in relation to the child's passport and ensuring that it is handed over in time for any holiday. 

Conclusion

The paramount consideration for Court is always the child's welfare when making a decision over whether a child should be allowed to be taken outside the UK against the wishes of one parent.   

This article has been revised slightly since it's publication in The Scotsman in 2020.