Child Abduction after Separation or Divorce

Author:
Zuzanna Szymczak
Family Law and Divorce Solicitor, Polish Team
Date:
24/10/2019

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.

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 Law Solicitors.

Call us on 08002605010 or request a callback and we will help you.

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 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 Can Family Law Stop Me from Relocating Overseas with My Child?

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.

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.

For initial advice call our Family Law & Divorce Solicitors

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