Children and the law: relocation, holidays and abduction

 

What is Child Abduction?

What if I go on holiday with my child?

What if I think my children’s father is going to take the children away from me?

What if my children’s father has already taken them away from me?

What if I think my children’s father might take them abroad?

What if I do not know where my children have been taken?

What if my children have been taken to another part of the UK?

What if my children have been taken outside the UK?

I would like to move abroad permanently with my children

My children’s father would like to move abroad

Immigration and family proceedings

Useful Contacts

 

Many parents arrange to go on holiday or relocate with their children but these issues can be one of the most complex and confusing areas of family law when parents do not agree. This guide sets out some of the common areas of dispute and explains what you can do if your child is taken away from you without your consent.

Some of these issues can be complicated and your circumstances will be individual to you. You should therefore also seek legal advice. You can obtain free, confidential legal advice on these issues by contacting our advice lines. Details of the advice lines can be found towards the end of this guide. If your child is abducted, you should contact the police and seek legal advice urgently.

 

What is Child Abduction?

Child abduction is defined as taking a child under 16 away from the person who usually cares for them and has parental responsibility for them (PR) without their consent.

International child abduction occurs when a person takes a child, or keeps a child, out of the country the child normally lives in without consent from everyone who has PR for the child.

It is a criminal offence for a person connected to a child (such as parents, guardians, or anyone with PR for a child) to take or send the child out of the U.K without either consent from everyone who has PR for the child or permission from the court.  Anyone found guilty of child abduction can be sent to prison or fined or both.

For more information on parental responsibility and what it means, see our  Children and the law: Parental Responsibility. This guide will only look at abduction of a child from a mother as the usual carer, by a father. However, children can be abducted from the care of their fathers, foster carers or guardians and the person who abducts the child can be a parent or a stranger.

 

What if I go on holiday with my children?

If you look after your children on a day to day basis, then you can take them on holiday within the UK. However, you will need to make them available for any court ordered contact. If you would like to take them abroad, then you must obtain the agreement of your children’s father (if he has PR), and anyone else who has PR for the children.

You are required to obtain consent even if your children are going away without you, for example on a school trip.

If you wish to take your children abroad and the father will not consent, you can make an application to the Family Court for a Specific Issue Order. If the court grants permission for you to take the children abroad, you do not need the father’s consent. See What if my father refuses permission? below.

If you have a child arrangements order which states that your children live with you, then you can go abroad with the children for up to 28 days without seeking permission from everyone with PR. You must, however, still make the children available for any contact arrangements ordered within the child arrangements order.

If your children’s father does not have PR for your children, then you do not require his permission to take your children on holiday either in the UK or abroad.

 

What if my child’s father refuses permission?

If your child’s father refuses to agree to you going on holiday abroad with your child, then you will need to apply to the Family Court for a specific issue order. This is an order dealing with a particular problem over caring for children between parents.

You can make this application on an emergency basis if you have travel plans, but you should be aware that the Family Court may not be able to deal with your case very quickly. A court is unlikely to make an order allowing you to go on holiday with your child unless they have heard why the child’s father does not agree.

The Family Court can make an order allowing you to go on holiday on one occasion, or if there are likely to be further disagreements, can set out an order which allows for regular holidays and school trips.

If your children’s father is very worried about you going on holiday in the UK or abroad with your children, then he can make an application for a prohibited steps order (PSO).  A PSO is an order which stops a parent from doing something or taking particular steps in relation to the child. For more information on these orders, see Children and the law: when parents separate. Your children’s father can make an application for a PSO even if he does not have parental responsibility. If a PSO is in force, then you can be punished by the court if you do something you are forbidden from doing.

 

Note on passports and names

If your children do not have the same surname as you, then you may have difficulty in returning to the UK through some terminals. Although it is not a legal requirement in the UK, you may wish to travel with some form of written confirmation that you are your children’s parent.

 

What if I think my children’s father is going to take the children away from me?

There are a number of different situations where children may be retained or kept by their father, even if they normally live with their mother. Most commonly, a father will refuse to return children to their mother after contact or a holiday.

If you have concerns that your children’s father will try and remove them from your care without your agreement, you can apply to the family court for a PSO. A PSO can stop someone removing children from your care, or taking them out of school without your permission. You can make this application without telling the father, if you believe that telling their father will make it more likely that they will be taken from you. This is called making the application without notice.  The father will be informed of the application after the first hearing, and there will be a further hearing which you and the father will attend for the court to decide whether the PSO which was ordered at the first hearing should continue. You may find it helpful to read our guide to Children and the law: The Family Court process.

If you are making the application on a without notice basis, you will need to explain your reasons for doing so. These might include:

  • Your children’s father has made threats to take them from your care
  • Your children’s father has been violent towards you or your children
  • Your children’s father has tickets or travel documents to take them abroad although you have not agreed to this.

 

What if my children’s father has already taken them away from me?

It is important to seek legal advice as soon as possible. If your children’s father has PR for them, then it is unlikely that the police will take the children away from him and return them to you unless either:

  • You have a child arrangements order or residence order saying that the children live with you.
  • There is a real risk of serious harm if the children stay with their father.

You can apply to the Family Court for an emergency order for your child to be returned to your care. A court will make this order if it is in your child’s best interests to do so. They will look carefully at where your child normally lives and will usually restore living arrangements to how they were before your child was taken away. A court can also make a number of other orders to protect you and your child, including a non-molestation order, prohibited steps orders and a child arrangements order setting out who your children live with. See our guide to Domestic Violence Injunctions and Children and the law: when parents separate for further information.

If you have a child arrangements order stating that the child lives with you , then the court can make a specific issue order requiring your children’s father to return them to you, and the police can also act to remove your children and return them to your care.

 

What if I think my children’s father might take them abroad?

In an emergency situation, the following action can be taken:

  • A court can order a port alert to prevent the children from leaving the country. This means that the police will flag the child’s name at all UK airports and points of departure. This is only where the threat is real and is likely to occur in the next 24-48 hours. The port alert will last for 4 weeks.
  • An order requiring a UK passport to be surrendered which can also prevent the Passport Service from issuing a passport or travel document. The police can issue a port alert without a court order where the criminal offence of abduction may be committed. However, they can only do so where they believe that there is real risk of abduction and it is likely to occur within the next 24 hours.

All of these actions require proof that the children are likely to be removed from the UK within the next 24 or 48 hours without the consent of everyone with parental responsibility. There are other urgent steps that can be taken outside of these time scales and so it is important you seek legal advice as soon as possible.

 

What if I do not know where my children have been taken?

A court can make an order to require adults in England and Wales to reveal where your children are. A court has the power to punish someone who does not give this information with a fine, imprisonment or both.

In some cases, the court may make your children wards of court and this can include requiring everyone with parental responsibility to provide information on where they are. A ward of court means that the Family Court can make any orders that are in the best interests of the child.

 

What if my children have been taken to another part of the UK?

If your children are taken to a part of the UK other than England and Wales by their other parent (for example, Northern Ireland or Scotland), you will need to register any orders relating to them at the courts in that country.  This includes orders such as a child arrangements order, or a specific issue order requiring your children to be returned to you. Once the orders are registered they can be enforced in that country.  Registration can only take place until a child is 16 years old.  If there are no existing orders to register, you can also apply for court orders for the children to be returned to you in the country where your children have been taken to.  For further information contact a lawyer in the country your children have been taken to.

 

What if my children have been taken outside the UK?

If your fear that your children have been abducted out of the UK you should:

  • Contact the police. The police can set up a Port Alert (explained above).
  • Contact a solicitor or organisation such as the International Child Abduction and Contact Unit or Reunite urgently (see Useful Contacts) for further assistance.

The procedure for bringing your children back will depend upon which country they have been taken to.  The UK has entered into agreements, also known as conventions, with some countries which make it easier for abducted children who usually live in the UK to be returned here.  You will need to make contact with the organisations above who can provide assistance directly to you.

 

I would like to move abroad permanently with my children

You will need the permission of everyone who has parental responsibility, or a court order to relocate to a new country.

If the other parent with parental responsibility does not consent to the relocation, you must apply for a relocation order in the Family Court. The order will be granted if relocation is in the best interests of your children. This will mean looking at the best interests checklist which you can find in our guide Children and the law: when parents separate.

It is important to have a clear plan for what will happen in the country where you move to before making an application for a relocation order. The court will want to make sure that there is a detailed and well thought out plan. This plan should include detailed information on:

  • Your motivation for relocating. It will be important to demonstrate it is not because you want to deny your child/children a relationship with the other parent.
  • Immigration status for you and your children, including any applications you will need to make;
  • Arrangements for your children’s schooling;
  • Any family support you will have if you move;
  • Your job prospects, or other details about how you will support yourself and your children financially;
  • Information about where you will live;
  • Details about how your children will continue to have contact with their other parent, including telephone contact, contact over the internet and visits or holidays.

As part of looking at the best interests of your children, a court will look at how the decision will impact on you as your child’s carer. A court will be concerned if you do not intend on helping your children maintain a relationship with their other parent.

 

Effect of relocation on child arrangements orders

Not all countries will recognise a child arrangement order that is made in the UK. This means that even where there is a court ordered arrangement for contact with your children’s other parent, it is not necessarily enforceable in that country. If it is not, then the court will consider this when they make an order for relocation.

 

My children’s father would like to move abroad

If your children’s other parent would like to move abroad without your children, than that is their choice and the Family Court cannot prevent an adult from moving to another country. They can still apply to the Family Court for child arrangements orders, for example, to arrange holiday or staying contact as long as your children remain in this country.

 

Immigration and family proceedings

If you or your children’s other parent do not have settled status in the UK, then this may also be considered as part of the family proceedings. You can apply to remain in the UK if you have a child arrangements order to spend time with children who live here, or if you are caring for children who have contact with a parent who is British or settled in the UK. In most cases, telephone contact or indirect forms of contact will not be sufficient.

If you are making immigration applications at the same time as a case is being heard in the Family Court, then the information can be given to each court. There is a special procedure for sharing information between the two courts.

The issues relating to orders about children can be complex and we have provided a very basic overview of terminology, law and court practice and procedure. We would also strongly advise you to seek legal advice by either telephoning our legal advice line or a solicitor. Where your child has been abducted from your care, it is important that you seek advice urgently.

Please note that the law as set out in this legal guide is the law as it stood at the date of publication. This guide sets out the law in England and Wales only. The law may have changed since then and accordingly you are advised to take up to date legal advice. Rights of Women cannot accept responsibility for any reliance placed on the legal information contained in this legal guide. This legal guide is designed to give general information only.                                               

 

Useful Contacts

International Child Abduction and Contact Unit (ICACU) – 020 3681 2608 –

www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit

Reunite International – 0116 2556 234 – www.reunite.org

Foreign and Commonwealth Office (FCO) – 020 7008 1500- childabduction@fco.gov.uk

Gov.uk information page on child abduction – https://www.gov.uk/government/collections/child-abduction

Legal aid Agency – 0345 345 4 345

Finding a solicitor or barrister

The International Child Abduction and Contact Unit (details above) have a list of accredited experts who specialise in this area of law.

Reunite International (details above) also has a list of lawyers that specialise in this area.

The Law Society – www.lawsociety.org.uk/find-a-solicitor/

Resolution – 01689 820272 – www.resolution.org.uk

Bar Council – 020 7611 1472

 

 

Tell us what you think of our legal information here

 
 
 

Contact us at:


Rights of Women,
52-54 Featherstone Street,
London, EC1Y 8RT.
Administration: 020 7251 6575
Email: info@row.org.uk