Leave to Remove Applications & Child Abduction

By Punam Denley of Blanchards Law.

If you want to take a child out of England or Wales, and you don’t have a Residence Order then you will need to ask permission of everyone with Parental Responsibility for the child. This is called a ‘Leave to Remove’ application. If you do not, then you may be committing the criminal offence of Child Abduction (see below). If you have a Residence Order, you can take the child away for 28 days without permission. If you are the only person with Parental Responsibility then you do not need to ask anyone, and you can take the child out of the country permanently, if you like, as long as there are no proceedings about that child in the English or Welsh courts at the time.

Child abduction

If you remove a child from the country where he or she normally lives without the permission of all those with Parental Responsibility, you may be committing the criminal offence of child kidnapping under the Child Abduction Act 1984. See the paragraph above this for when you do have authority to do so.

How to obtain your Leave to Remove

To secure your leave to remove if the other parent will not agree, you must make an application to court, and a judge will decide what is in the best interests of your child. Sometimes the court will order a report to be produced by ‘Cafcass’ which is an organisation independent of the court, which deals with children issues in the courts. Cafcass and the courts must apply the ‘Welfare Test’ which is set out in the Children Act 1989, in reaching their decision. There are many factors that the court will take into account, and the views of an older or a more mature child may well be very important to a judge in these applications, although not necessarily determinative.

What to do if your child has been or is about to be abducted

Child abduction is on the increase worldwide. If you think your child might be at risk of child abduction from your partner or if he has family in or links with a foreign country (and you are concerned that may use these links), you can take your child’s passport from him and then apply for a Prohibited Steps Order (see above). This orders that your partner can’t take the child away from England or Wales without another court order or your permission. You can make this application on an emergency basis without telling your partner. It is very important to take legal advice from a specialist here, as you don’t want to scupper your chances of getting an order if you need it. You could also get an order that prevents them from getting another passport for your child. This order is sent to the Passport Agency, but you would need to remind them about this every 12 months, by sending them another copy of the order. Also if you believe a kidnap is imminent, or if the child has already gone, you could ask for an ‘All Ports Alert’ which means that all airports and seaports are told by the police to be on the lookout for your child and abductor, and to hold them. In practice, this is not terribly effective, but you can help by giving the police as much detail about the appearance and possible whereabouts and destination of your partner.

If the worst happens, and your child is abducted, you will have to bring proceedings in the country to which the child has been taken. Certain countries (most of Europe and the United States) are signatories to the Hague Convention which means that they should all apply the same rules on deciding whether or not to return a child back to where they normally live. Also in some countries, including the UK, as the Applicant you are automatically entitled to free legal funding.

In the UK, the courts return about 90% of abducted children, but other states do not have the same track record, and tend to favour their own countrymen over ‘foreigners’. So if you have married someone from another country, and they kidnap your child to their place of origin, you can’t guarantee that you will get your child back.

You should contact Reunite International (www.reunite.org )

PO Box 7124
Leicester
LE1 7XX
Advice Line (0) 116 2556 234

Telephone (0) 116 2555 345

Reunite is the leading organisation in the UK dealing with child abduction. It is dedicated to sorting out these issues, and even offers a mediation service to which I have referred clients and their partners with successful outcomes.

You will experience great difficulty in getting your child returned from a non-Hague Convention country, such as the Middle East and Japan. However, there have been cases where a parent has managed to get their child back despite these problems, so you should never give up.

© Punam Denley, March 2013

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk