It is common place that whilst one party may move out of the family home, they tend to remain in the local area so that they can easily maintain easy access to their children for contact arrangements.
There is no such thing as “custody” anymore following a relationship breakdown, despite many people referring to “custody” the law has moved on and we now say Shared / Living Arrangement Orders. This is a formal application to the Court and is not something you automatically obtain unless parents have agreed these arrangements.
However, what happens when one party removes their child from the UK jurisdiction without the other party’s consent? Is it abduction?
What is child abduction? The Child Abduction Act 1984 s1 records
…. A person connected with a child under the age of 16 commits an offence if he takes or sends the child out of the United kingdom without the appropriate consent.
Under the Children Act there is no specific provision for leave to remove a child. It becomes even more complex as we have left the EU. It will also depend whether the child has been taken to a country in or out of the Hague Convention as to how this can be resolved.
The starting place must be whether you firstly have parental responsibility for the child. In the absence of exercising your rights of parental responsibility it will be difficult to make an application without good reason, however, not impossible. Having parental responsibility does mean playing a part in your child’s life that includes looking after the child’s welfare and contributing in some way, showing an attachment to the child. In England and Wales that does not necessarily mean making a financial contribution.
Consent is therefore key to any agreement relating to removing the children from the jurisdiction. It can be a criminal offence to remove children without the other parent’s consent. The Court has power to make a “Return Order”, that means returning the child/ren to the other parent and you may be faced with an application that the child resides with the other parent, as a result. You will have the Police escort your children to the other parent and there will be strict Court Orders around any contact you have with the children until agreement or final hearing. You can expect a CAFCASS officer to be appointed by the Court to give a full report on your child’s welfare.
If a parent has a residence order in place (before 22.04.14), or is the holder of residence under a Child Arrangements Order then they may take the child out of the UK for up to 28 days without the consent of anyone else who has Parental Responsibility for the child unless there is an order in place expressly prohibiting this. If the parent intends to take the child out of the UK for longer than 28 days, then they will need the appropriate consent. If this cannot be obtained then a court order would be required.
Children over 16 years are exempt, and the Courts are of the general opinion that they can make up their own minds whom they want to live with.
So what should you do if you cannot agree? Should you be a parent who wishes the child to remain in the jurisdiction, you should make application for a Prohibited Steps Order, these orders can be made ex-parte – (without the other party knowing if it is urgent) or on notice with the other party knowing about the application. However, unless urgent, you are required to attend mediation unless one of the exemptions applies such as domestic violence. In such applications the Court will usually appoint a CAFCASS officer to report on the welfare of the child.
Returning your child
An application can be made to the High Court for the return of a child under the inherent jurisdiction. (This is also the process for securing the return of a child if the child has been taken to a country which is not part of the Hague Convention).
How do you locate your child?
In variably the longer it takes to trace a child, the harder the effective return of the child may become so we encourage parents to take immediate action before the child settles.
A Local Authority who has Parental Responsibility for a child by virtue of a care order or an Emergency Protection Order may apply to the court for a recovery order to have the child’s whereabouts found.
If the child is believed to be within the UK but their location is not known, it is possible for parents and connected persons to make a court application to try and determine the child’s whereabouts. This can be done through the Local Family Court.
If you cannot trace your child you can approach Reunite https://www.reunite.org/ they are an impartial charity that offers help, advice and support
The Court will order that its Orders are served, but how can you do that without an address.? The Court will request their Order be submitted to the Department of Work and Pensions and/or HM Revenue and Customs asking for information – this information will be sent to the Court (not the parties). These Orders passed on to the parent ultimately will carry a penal notice for any failure to comply, which may be seen as contempt of court resulting in incarceration or having goods seized.
If your child is at risk of abduction you can report this to the police , seek a high court order or even contact the passport office and ask them to surrender a passport or ask them not to grant a passport to the child. They will usually need to see a court order (as mentioned above), but they are not necessary in the case of unmarried mothers wishing to lodge an objection.
In the UK legal aid is available for cases of abduction from the UK, depending on an assessment of your financial means and the merits of your case.
This is a specialist area of law and you need to act swiftly , sensitively and proactively.
A City Law Firm