Child Abduction after Separation or Divorce

Posted on: 7 mins read
Last updated:
Lorraine Harvey

Partner, Family Law

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Many parents who separate or get divorced can agree on the terms of the child arrangements or even a Shared Parenting Plan. However, in some cases, the parents’ separation leads to serious conflict about the child’s arrangements.

This can get even more complicated when one of the parents considers moving abroad with the child. In the most extreme cases, relocating with a child whilst ignoring national and international law, may actually be child abduction.

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Taking a Child Out of the UK

You can take your child out of the jurisdiction of England and Wales if you are the only person who has Parental Responsibility for that child and there are no Court Orders in place barring you from doing it. This is the case, for instance, when the father’s name is not on the child’s birth certificate or the child’s other parent has died.

If both parents are named on the child’s birth certificate, they both usually have Parental Responsibility for their child and one person does not supersede the other. This means that separated or divorced parents need to consult each other and make any important decisions in the child’s life together, regardless of with whom the child usually lives with.

Consequently, you need to ask for the other parent’s consent to take your child abroad, even if the child lives with you. Whether you want to go for a short holiday or move to another country, the other parent’s permission is still needed.

The only difference is if one parent obtains a Child Arrangement Order from the Court. They can travel outside of the UK for up to 28 days at a time without the other parent’s consent. This is providing no Prohibited Steps Orders have been made and no other Court Orders are breached whilst doing this.

For initial advice get in touch with our Family and Child Law Solicitors.

 

What if a Child is Taken Abroad without Consent?

If a parent tries to take a child abroad unlawfully and the other parent informs the authorities in time, they may be stopped at the airport and questioned by the police. In addition, providing an appropriate Court Order was obtained, their passports would be seized, and the child could be made a ward of the High Court.

Taking or keeping a child out of England or Wales permanently, without appropriate consent, can result in very serious consequences for the parent who ignored the law.

Removing a child that is habitually resident in England or Wales to another country without the appropriate consent is a criminal offence under Child Abduction Act 1984 and will be treated as a child abduction under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. You should note though that the convention will only help to secure the child’s return from the States who signed it.

 

What Can I Do if My Child is at Risk of Abduction?

You need to act now if you think your child is at risk. You can make an urgent application to the Court for a Prohibited Steps Order.

In cases requiring immediate legal action, it may be possible to apply to the High Court. The High Court has powers to make Orders to seize the child’s and other parent’s passports and stop them from leaving the UK through a Port Alert.

Because of the risks in child abduction situations, using an experienced Family and Child Law Solicitor will make sure you make the right Court application to protect your child.

 

What Can I Do if My Child Has Been Abducted?

Contact the Police

Do this immediately. Report that your child has been unlawfully removed from the UK. Child Abduction is a criminal offence under the Child Abduction Act 1984, which may be punished by a fine or imprisonment for a maximum term of seven years.

Contact International Child Abduction and Contact Unit

The next steps depend on the country where your child has been taken to. If that country is a part of The Hague Convention regime, getting them back should be easier. For more information see 'How does the law prevent me from relocating with my children?'

The parent of an abducted child can apply to the International Child Abduction and Contact Unit based in London. This organisation can instigate legal proceedings for the child to be returned to the UK. 

The local Family Court in the country where the child has been taken will decide if the child should be returned to the UK. Both parents will present their case in Court but any defences for child abduction are very limited. They include permission from the other parent, risk of harm to the child or placing the child in an intolerable situation.

 

Child Abducted Outside of Hague Convention Countries

This makes the situation more difficult. You should get urgent legal advice as soon as possible. You can make an application to the Courts in England and Wales. However, you will also need to consult a Solicitor qualified in the country your child was abducted to, to consider if and how can you apply to the local Courts for the child to be returned to the UK.

 

Getting Your Child Returned

When it comes to getting your child returned to you after they have been taken abroad without your consent depends on which country your child has been taken to.

But usually as long as your child is 16 years old or under, the International Child Abduction and Contact Unit (ICACU) can help. You’ll need to provide the following documents at their request:

  • Photographs of your child
  • Photographs of who has taken your child
  • Birth certificate
  • Copy of marriage or divorce certificate, if applicable
  • Copies of any court orders relating to the child

You will need to complete an ICACU application form and return all the necessary documents to them via email. While you can provide the documents via post, email is much quicker for such a time-sensitive incident.

Once the ICACU has received your application, they will send it to the relevant organisation in the country that your child is located. If you need to provide more evidence or documents, they will contact you directly.

A decision can take at least 6 weeks, but it may be extended depending on your circumstances. Unfortunately, the ICACU are unable to guarantee that your child will be returned to you or that you will be able to get contact with the parent or person who has taken them.

 

Unsure of the Child’s Location

If you’re not sure of where your child has been taken, you will need to report your child missing to the police. You can also contact your local court to make an application for an Order to help find your child. Simpson Millar can assist you through this whole process, and we understand what a stressful time this can be on parents.

 

How Do I Legally Take My Child to Live Abroad?

Firstly, try to get permission from everyone who has Parental Responsibility for your child. That usually means the other parent. It’s better to get this consent in writing so you can produce it as evidence if you ever need to. If you don’t want to deal directly with the other parent yourself, you can negotiate using a family mediator or Solicitor.

To avoid uncertainty, you may want to sign a Consent Order with the other parent. A Consent Order needs to be approved and sealed by the Court. The Court is likely to list one Hearing before approving a Consent Order.

If the other parent does not give consent, you can apply to the Court in England and Wales for a Specific Issue Order. You will have to attend at least one mediation meeting before you file an application to the Court unless one of the exemptions apply.

You should be prepared to argue the move to another country is in the child’s best interest, that you have a realistic plan for the move and a plan for future contact with the other parent.  

You should always get legal advice to confirm what your rights are and how you can either remove the child from the country or stop an unlawful removal.

 

Why Choose Us as Your Child Abduction Solicitors

If your child has been abducted and taken out of the country by the other parent, or anyone else, without your consent, we can help you take action. We can also help if you feel that your child is at risk of being abducted, by advising you on what protection steps can be put in place.

Our Family and Child Law Solicitors can help escalate your case because child abduction is an extremely serious matter. Get in touch with our expert team of solicitors today to arrange your free consultation. We’ll listen to your case and will let you know your legal options straightaway, so you can get the legal process started without delay as this is such a stressful time, and we need to act fast to ensure you are reunited with your child.

We will offer guidance and legal advice on every step of the way, including gathering evidence and advising you on anything that you should be doing to help get your child returned as quickly as possible, and offering support at Court.

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References

www.gov.uk. (n.d.). You don’t know which country your child is in – Find help to get your child back from abroad or arrange contact – GOV.UK. [online] Available at: https://www.gov.uk/return-or-contact-abducted-child/y/i-don-t-know-which-country-my-child-is-in

Lorraine Harvey

Partner, Family Law

Areas of Expertise:
Family Law

Lorraine is a Partner at Simpson Millar, specialising in Family Law for over 20 years.

She handles middle to high net value cases, including pension claims and complex trust, and also advises on pre-nuptial and post-nuptial agreements.

Lorraine has unrivalled knowledge of public sector pensions, in particular police pensions, having advised police officers on pension claims for two decades.

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