HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
INFORMATION ON CHILD REMOVAL/ABDUCTION
RESPONSIBILITY OF A LITIGANT IN PERSON
This information provides an overview of the abduction, wrongful retention and the unlawful removal of a child from the UK.
Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.
It is a criminal offence to take a child under the age of 16 out of the country without the appropriate consent.
Child abduction is when a person takes or sends a child under 16 out of the UK without the permission of those with Parental Responsibility or permission from the court.
Where you have a Child Arrangement Order for a child to live with you, you will not be acting unlawfully if the child is taken or sent out of the UK for up to 28 days without the appropriate consent.
If you have a Special Guardianship Order for a child you will not be acting unlawfully if the child is taken or sent out of the UK for up to three months without the appropriate consent.
The 3 areas of child abduction
Abduction where a child is taken overseas without the other parent’s consent—this may be a criminal offence under UK law.
Wrongful retention where a child has been kept in a foreign country following an overseas trip without the appropriate consent.
Threat of abduction where there is a risk that a child will be taken overseas without the appropriate consent.
Criminal Offence to remove a child from the UK without consent
It is a criminal offence under the Child Abduction Act 1984 for a person connected with a child under the age of 16 to take or send that child out of the UK without the appropriate consent.
Appropriate consent is needed from any other person with parental responsibility
Where appropriate consent to take a child abroad is not agreed
When two or more people with Parental Responsibility for a child (or in the list above) cannot come to an agreement about taking the child out of the UK, then the person wishing to take the child will have to obtain the court’s permission to do so. Your barrister can provide legal advice and guidance on the preparation of your case for court.
It may be a criminal offence and/or contempt of court to take the child out of the country without the appropriate consent.
Child Arrangement Order: 28 days outside the UK without consent.
As a parent who has residence under a Child Arrangement Order, you may take the child out of the UK for up to 28 days without the consent of anyone else who has Parental Responsibility for the child unless there is an order in place expressly prohibiting this. Your barrister can provide you with legal advice and guidance to ensure that you are not in breach of the order of the court.
If the parent intends to take the child out of the UK for longer than 28 days, then they will need the appropriate consent. If this cannot be obtained then a court order would be required and you ought to speak to your barrister, who can provide legal advice and guidance on the preparation of your case.
The courts can impose restrictions or require that a passport be surrendered if a parent is concerned about the frequency of trips abroad or fears that the other parent may abduct the child; and again, your barrister can provide legal advice
If a parent wants to take the child abroad for a short holiday, it is sensible to seek the agreement of the other parent before going. Parents should be reasonable about this and provide the other parent with plenty of notice.
How can I stop my ex partner moving to another area in the UK with my child?
It would be considered advisable to seek the consent of other persons with parental responsibility before moving to another area in England and Wales. However, it is not unlawful to do so without seeking the consent of other persons with Parental Responsibility.
It is possible for the left behind parent to apply for a prohibited steps order and this would ask the court to prevent the parent intending to move from being able to do so. This is a complex area of family law and your barrister can provide legal advice to prepare and represent your case in court.
What happens when a child is abducted, but remains within the UK
It is not the criminal offence of abduction to remove a child to Scotland, Wales or Northern Ireland. However, the consent of a person with Parental Responsibility is required to remove a child, even temporarily, from the jurisdiction of England and Wales. It is a criminal offence to remove a child to the Channel Islands or Isle of Man without the appropriate consent.
If there are any existing court orders in respect of the child under 16, they will be recognised and enforced in all courts over the UK as long as the order has been registered in the court of that jurisdiction. You will need to send a certified copy of the order to the court who can then register the order and acquire the power to enforce it.
An application can be made to the High Court for the return of a child under the inherent jurisdiction and also securing the return of a child if the child has been taken to a country which is not part of the Hague Convention.
Tracing a child within the UK
The longer it takes to trace a child, the harder the effective return of the child may become and the more likely the child is to be settled in their new residence and another disturbance may be against their best interests. This is a complex area of law and your barrister can provide advice and guidance on this.
A Local Authority who has Parental Responsibility for a child by virtue of a care order or an Emergency Protection Order may apply to the court for a recovery order to have the child’s whereabouts found.
If the child is believed to be within the UK but their location is not known, it is possible for parents and connected persons to make a court application to try and determine the child’s whereabouts. Again, your barrister can provide you with legal advice and guidance on the preparation and representation of your case.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister