Back to Basics
Amidst the panic, it is important not to lose sight of the basic principles of Scots law in this area. 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 (including areas affected by Coronavirus) 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 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 and you feel that they are not following government advice, you can apply to Sheriff Court for a specific issue order permitting you to take the child abroad.
The paramount consideration for Court is always the child's welfare and this should always be the determining factor for the court when making a decision over whether a child should be to allowed to taken outside the UK. The risk of Coronavirus is going to be a factor which will be at the forefront of the courts' minds when determining applications to take a child on holiday to any area of the world particularly affected.
It will be unavoidable that children are going to face disappointment and upset as school trips and family holidays are cancelled coming the months and it is important that a common sense approach is taken by parents when deciding and agreeing plans.
It is always preferable for parents to come to an arrangement that is in the interests of their children but if you are struggling to reach agreement or if you wish any advice about the issues arising from this blog, please do not hesitate to contact firstname.lastname@example.org