My ex-partner has not returned my children after contact – what can I do?
A common issue that separated parents struggle with is contact arrangements, which can be dealt with by way of agreement between the parents or through a Child Arrangements Order specifying contact arrangements – but what happens when a parent does not return the child(ren) after contact?
In this scenario, if there is no Child Arrangements Order already in place specifying with who the child(ren) live, and the child(ren) have not been returned by a parent following contact, then you may find yourself in a tricky situation. If the parent who has not returned the child(ren) has parental responsibility for them, then there is little the Police can do if there is no immediate risk of harm to the child(ren).
If the child(ren) are not returned and there are safety concerns, the first port of call is always the Police.
What is parental responsibility?
Parental responsibility is defined as all the ‘rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property’ as defined in Section 3(1) of the Children Act 1989. In practice what this means is it gives a parent the right to make decisions about the day to day care of a child and to make important decision in relation to medical care, education, health and activities.
Who has parental responsibility?
A mother automatically has parental responsibility for her child(ren). Married parents have joint responsibility for their child(ren) if they were married at the time that the child(ren) was born.
If parents were not married when the child(ren) was born, then there are a number of different ways that a father can obtain parental responsibility. For instance by :-
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Being registered on the child`s birth certificate, with the consent of the mother, as the father; or
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Entering into a parental responsibility agreement with mother, or
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Applying to Court for a parental responsibility Order; or
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Being appointed by the Court or by mother as a Guardian for the child.
Seeking the child(ren)’s return
As stated above, if there is no Child Arrangements Order in place specifying who the child(ren) should live with, and they have not been returned from contact by someone with parental responsibility, then the next step is to issue an urgent application to Court. The application will then be listed for a hearing before a Judge for them to decide what is in the best interests of the child(ren). If the situation is urgent, an application can be made ‘without notice’ meaning that your ex-partner will not be informed of the hearing and it will take place quicker. A Judge will then decide whether to make a temporary Order or simply list it for a hearing where the ex-partner will be invited to attend.
Any Child Arrangements Order will set out the agreement on key issues, such as:-
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Where the child(ren) will live and who with;
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Who, when and how the child(ren) will have contact with the parents;
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Who will have contact on important dates like Christmas, Father`s Day, Mother`s day, birthdays and school holidays.
In situation where there is concerns about a parent removing the child(ren) abroad, the Order could also specify that the parent having contact could be directed to provide his passport to his solicitors during contact visits.
The Court will always take into account the best interests of the child(ren) and wherever it is safe to do so, they will look to promote contact between both parents.
It is always best to notify the child(ren)`s school/nursery and/or any relevant family members that care for the child(ren) of the risk of abduction.
Prohibited Steps Order
A Prohibited Steps Order, as set out in Section 8(1) of the Children Act 1989, is an order that ‘no step which could be taken by a parent in meeting his parental responsibility, and which is of a kind specified in the order, shall be taken by any person without the consent of the Court’. This means that what would normally be okay for a parent to do, ie take you child(ren) on holiday, would not be permitted if there was a Prohibited Steps Order preventing this.
This is seen often in cases where parents have separated, and one parent wishes to take the other abroad and the other parent does not agree. In this scenario, a Prohibited Steps Order, could be applied for as they are used when there is a single issue that needs to be dealt with that parent`s do not agree upon. Further examples are incidents such as one parent wanting to change the surname of the child(ren), or school, or where there is disagreement about medical treatment and the other parent does not agree.
If a Prohibited Steps Order is made and is then breached, the consequence is that the Court will treat the breach as a criminal offence. For instance, in the case of failure to comply with a Prohibited Steps Order to not remove a child(ren) from the country abroad would be deemed to be the criminal offence of kidnapping.
Specific Issue Order
Another helpful Order when there is dispute over a single issue between parents relating to a child, such a medical treatment, education or change of surname is a Specific Issue Order. This Order can be made to settle any dispute that has arisen in respect of one parent wanting to exercise their parental responsibility and the other parent not being in agreement.
Charley Kelly, Family Law Solicitor
Lawson-West Solicitors, Leicester
If you are having difficulties with a Child Arrangements Order being ignored, or you need an urgent application to the court, please get in touch with one of the excellent family team here at Lawson-West who will be happy to help. The main office telephone number is 0116 212 1000.
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