What happens if my ex won’t give our child back?

Child arrangements following separation can often result in high level conflict between parents, as naturally both parents want to spend as much time with their children as they can.

A possible unfortunate consequence of this conflict is that a parent may then find themselves in a situation where their ex-partner is refusing to return the child. When faced with this it is difficult to know what to do and how best to protect the interests of the child.

This blog deals with situations where a child has been retained after contact or removed from their home without consent (within the jurisdiction of England and Wales) and outlines the legal position of each parent in this situation – as well as offering some practical advice on how it can be resolved.

Parental Responsibility

What is it?

The first question that needs to be answered is, who has Parental Responsibility for the child? This is because the action that you can take if you are in this situation will differ depending on that answer. Parental Responsibility has been defined by the Children Act 1989 as “all the rights, duties, power, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This means that if you have Parental Responsibility for a child, you have a right to be involved and consulted about important aspects of the child’s upbringing. This includes, but is not limited to, educational decisions, certain medical decisions, choosing or changing the child’s name and deciding whether the child can be taken abroad.

There is further detail in our Parental Responsibility factsheet here: https://www.familylawpartners.co.uk/wp-content/uploads/2021/09/Family-Law-Partners-Parental-Responsibility.pdf

How do you get Parental Responsibility?

There are different ways in which Parental Responsibility can be acquired:

• The child’s birth mother automatically has it;
• The biological father will have Parental Responsibility if he is married to the child’s birth mother;
• If the biological father is not married to child’s birth mother, he can acquire Parental Responsibility by being named on the birth certificate;
• The making of a court order that grants Parental Responsibility (a Child Arrangements Order, a Parental Order – commonly used in Surrogacy situations, an Adoption Order or a Special Guardianship Order);
• The making of a Parental Responsibility Agreement between the birth mother and another parent.

What should I do if my ex refuses to return our child?

Contact your ex

The first step, if possible, would be to ask your ex-partner in a non-confrontational way for the child to be returned. If this proves to be unsuccessful and your ex does not have Parental Responsibility for the child, but you do, you can contact the police. This is because your ex is likely to have committed an offence under the Child Abduction Act 1984 and the police may return the child to you as the parent with Parental Responsibility.

Child Arrangements Order

If, however, your ex-partner does have Parental Responsibility, an urgent application for a Child Arrangements Order together with an application for Peremptory Return (depending on the circumstances) may be made to the court. The purpose of a Child Arrangements Order is to regulate the child’s living and contact arrangements. It will be important to tell your solicitor what has been agreed (if anything) so far about arrangements for the child and what you have put in writing.

If the situation is one of urgency, a without notice application can be made, this means that the other parent will not be notified of the application and the hearing will take place at a sooner date. As a middle ground, you can also request that notice of the application to the other parent be “abridged” (i.e. shortened).

Prohibited Steps Order

You could also consider making an application to the court for a Prohibited Steps Order as this type of order prevents one parent from taking certain steps without the consent of the other parent or the court. However, case law suggests that this may not be the appropriate application to make in this situation and the decision of whether to make this application will heavily depend on the factual circumstances. This type of application may be appropriate if there is a concern that your ex-partner will attempt to relocate your child, either in the UK or internationally. Again, the application for this order can be made without notice if the situation is one of urgency.

According to s.9(5) of the Children Act 1989, the court should not make a Prohibited Steps Order if the issue can be resolved using a Child Arrangements Order which is why it is not likely to be the correct application to make in this situation. However, it can be made in conjunction with a Child Arrangements Order if necessary. It will be important to seek advice from a lawyer as early as possible to ensure that the correct application is made and in a timely manner.

How can we help?

Please contact us in confidence to discuss your circumstances if you are experiencing conflict or difficulties in the arrangements for your children either during or following divorce or separation. Our specialist team will support and guide you through your options and next best steps.