Nicola Logan and Gemma Vines take a look at a complex area of international children law, which is what you can do if your ex-partner has taken (or you fear they are planning to take) your child abroad without your consent.
It is not unusual, particularly in families with international connections, for either parent to become anxious that a child might be abducted to another country or retained in another country following a holiday there.
Taking a child under 16 out of the UK without consent of all persons with Parental Responsibility or specific permission of the Court is a criminal offence under the Child Abduction Act 1984. The only exception is where there is a Child Arrangements Order in force which confirms that the child lives with the parent that has taken, or is planning to take the child aboard. In those circumstances that parent is entitled to take the child abroad for up to four weeks without the consent of the other parent with Parental Responsibility.
The police have the power to arrest anyone whom they reasonably suspect of attempting to commit an offence of child abduction. Where there is a real possibility and imminent danger that a child under 16 will be wrongfully removed from this country or retained in another country, the police can issue an ‘all ports warning system’ which involves circulating details of the child and the parent to all sea and airports. The child’s details will then be held for four weeks.
There are also a number of steps which can be taken within the family court system to prevent a child from being removed from the UK or ‘retained’ in another country, for example, if the other parent is planning on taking your child on holiday but you have reason to suspect they won’t be returned. For obvious reasons, it is crucially important that steps are taken quickly. Any delay in making the relevant application can result in your child being taken out of the country, which may then result in difficulty locating and securing their return.
If you are concerned that there is a risk that your child may be taken to or retained in another country without your permission, then an urgent application may need to be made to the Court for an Order prohibiting the other parent from leaving the country with them. This is known as a Prohibited Steps Order.
To apply for such an Order, you must have Parental Responsibility for your child (see our earlier blog on Parental Responsibility). If you do not already have this, you will have to also apply for a Parental Responsibility Order at the same time.
When considering whether to make a Prohibited Steps Order, the Court will need to assess the level of risk. Where the parent is planning on taking the child on holiday to a country which is a member of The Hague Convention on Child Abduction, the Court is unlikely to interfere. This is because the Hague Convention (which is an international agreement between certain countries), operates to ensure that the countries co-operate and work together to secure fast return of the child to the country where they normally live in circumstances where they have been abducted.
If, on the other hand, a parent is planning on taking the child to a country which is not a party to the Hague Convention, the Court is more likely to be ‘on guard’, particularly if the parent wishing to take the child has a substantial connection with that other country for example, if he / she has lived there previously, has relatives there and / or property or assets there. In those circumstances, the Court will be slow to give a parent permission to take the child abroad to that country and is likely to put in place a Prohibited Steps Order and order the surrender of the child’s passport.
In certain situations, the Court may give permission provided sufficient safeguards can be put in place. These might include requiring the parent wishing to take the child abroad to do the following;
- Provide a number of legal Undertakings to the Court confirming that the child will be returned at the end of the holiday.
- Obtain a ‘Mirror Order’ from the Court in the foreign jurisdiction confirming that the child will be returned to England at the end of the holiday and that the UK court has the power to make decisions relating to the child (as opposed to the foreign court).
- Provide a financial bond, lodged at Court which would be forfeited in the event of the child not being returned and used by the other party as a ‘fighting fund’ to secure the child’s return in the event of an abduction.
- Provide an agreement / legal documentation to forfeit their ownership of property held in the UK to the other parent in the event of a non-return.
- Provide copies of airline tickets and confirmation of where the parent and child will be staying in the other country.
If you are worried that your child may be taken to another country or retained in another country after a holiday by the other parent it is important that you seek urgent advice from a specialist solicitor who can advise you about what steps you can take to minimise the risk. International child law is a complex area of law and it is very important that you obtain specialist advice at an early stage. We have solicitors with particular expertise in this area who can assist.
Are you concerned that your child may be taken out of the country?
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