Leave to Remove Applications & Child Abduction UK

Leave to Remove Applications

It is every parent’s worst nightmare: a failure of the other parent to return a child following a holiday. Questions most commonly posed of us to try to prevent this awful scenario are:

“what can I do if a mother or father is refusing to return a child?” or

“can I stop my ex taking my child on holiday?”

If you want to take a child out of England or Wales, and you don’t have a Lives with/Custody Order (now called ‘Lives with’ 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 Lives with 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.

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.

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

Prohibited Steps Order

A Prohibited Steps Order can limit one or both parents from carrying out certain events or trips without the express permission of the other.

A Prohibited Steps Order (PSO) is an order granted by the court in family cases which prevents either parent from carrying out certain events or making specific trips with their children without the express permission of the other parent. This is more common in cases where there is suspicion that one parent may leave the area with their children.

We have all heard the stories of a parent taking their child for the weekend and not returning them or going abroad with them and it becoming extremely difficult for the other parent to get their child back. Thankfully, this is one of the scenarios that a PSO seeks to prevent.

A PSO applies to any jurisdiction within the UK as specified by the court at the time of issue. For example, if the court finds that there are grounds to suspect the parent in question may take their child out of the area, then they may specify in the order that they do not do so. Failure to comply with this order is a criminal offence and could result in a custodial sentence.

This is useful if you are worried your ex-partner may attempt child abduction, for example, take the child abroad or to another area of the UK without your knowledge.

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.

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 or she 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 them 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.