Overseas travel is a common issue faced by guardians. Other guardianship matters include, but are not limited to, education, health care, religion and the changing of names.
Do you or does someone you know, want to take a child that you are a guardian of overseas?
How to resolve the matter
This issue is dealt with by agreement or a Family Court Order. It does not follow that a parent who has the primary care under a parenting order can make all guardianship decisions. A right to custody does not translate to all other decisions.
The primary position is that guardians should discuss amongst themselves and come to an agreement.
If you do not agree amongst yourselves, you need to seek a Family Court direction. The Family Court will consider factors such as:
- the travel destination;
- duration of stay;
- advantages and disadvantages (such as loss of contact for the non-travelling parties).
Another question we have been asked is whether the Family Court can make an order permitting travel, for example, every year for the next 5-10 years. Or whether the Court will make an order on a one off basis, such as for example, permitting travel for 2 weeks only in December 2016.
When the Family Court makes decisions about children, they are bound by the principles outlined in s5 of the Care of Children Act. The Family Court must have the welfare and best interests of the child in their particular circumstances as the first and paramount consideration. In other words, any decision they make must be child-focussed.
In our view, it is unlikely that the court will make a longstanding order permitting the child to travel every year for the next 5 or 10 years because the circumstances of the child and the child himself or herself is clearly likely to change. Consequently, what was once considered to be for the welfare and best interests of child, will most likely be inappropriate as a long term determination.
We consider the Family Court would be more likely to favour making decisions on a one off basis.
For more information on guardianship disputes, please click on the links below:
If you find yourself in a similar position, then please give us a call on (09) 309 4647.