If parents are honest about their fears surrounding coming out of a bad relationship one of their biggest worries is whether their ex can take their child. Sometimes it is just a fear as your ex has no interest in seeing the child or providing child support. In other family scenarios your ex-husband, wife or partner may want to take the child as they know that is the one thing that will really devastate you or they may genuinely want to look after the child as much as you do but the two of you can't agree on the child care arrangements. In this blog our specialist children solicitor looks at whether your ex can take your child and your options.
Will the police help if my ex takes my child?
If your child is taken your first thought may be to call the police and, in any situation, where you fear that your child is at risk of harm then that is the best thing to do. Risk of harm is always a balancing act so whilst you may think that your child is being harmed by staying with their other parent the police may not think so unless there is some evidence that the child is at risk.
The police won’t remove a child from a parent’s care to police a family court order over child care arrangements if there is no apparent risk of immediate harm as generally the police will say that other than in an emergency situation family and children law matters should be sorted out by the family court. That should not stop you from calling them though in situations where you do have genuine welfare concerns, such as a parent with anger management issues where there were domestic violence issues in the relationship or a parent who appears under the influence of drink or drugs and incapable of safely caring for the child.
There are some family scenarios where it is best to get a family court order so that you can show the order to the police. For example, if you fear that your ex-partner will take your child overseas without your agreement you can make an application to the family court for a prohibited steps order to prevent the child being taken abroad. If you are concerned that you or your child is at risk of domestic violence then you can apply to the court for an injunction order. If you are worried about the safety of contact you can ask the court to make a child arrangements order. A child arrangements order can stop direct contact or say that contact should only take place if supervised or can set limits and conditions to the contact.
Take legal advice if you are worried that your ex may take your child
As every family situation is different it is best to take legal advice on your circumstances and best options for your family. For example, you may be worried about your ex-husband or ex-wife planning to move within the UK for work reasons and taking your child with them, thus preventing regular contact visits. Alternatively, you may fear that your ex-partner wants to return overseas to their country of origin or where relatives are already based, taking the children with them so at best you can only get to see the children once a year.
Children law solicitors say that if you are worried about your ex taking your child it is best to take specialist legal advice as quickly as possible because:
A children solicitor will be able to tell you where you stand legally and often knowing what your rights are can help manage your worries
It may be necessary to apply for an urgent court order, such as an injunction order or action to prevent child abduction to an overseas country with the making of a prohibited steps order
A solicitor’s letter to your ex-partner or an application for a child arrangements order may be needed to formalise the child care arrangements and ensure that your ex-partner is aware of the consequences of breaching your agreement or the child arrangements order.
What happens if a parent breaches a court order and takes a child?
If a parent breaches a family court order, such as a child arrangements order, prohibited steps order or specific issue order, enforcement action can be taken. It can be tempting to apply straight to court to enforce an order but it is best to take children law legal advice before doing so. For example, if a parent has returned a child home late on one occasion starting enforcement action for a breach of a child arrangements order may not be appropriate. However, if the late return on a Sunday night is affecting schooling and is a regular occurrence despite requests and letters, it may be appropriate to take action.
Children solicitors say that if an order is breached you may need to take speedy action. For example, if a parent keeps a child after a contact visit was due to end you don’t want to leave things so that the other parent can then argue that the status quo of the child living with you has changed and that the child is now happy and settled with them. In cases where child abduction overseas is feared then it is vital that speedy action is taken to avoid the child being taken abroad. That is because if the child is taken to a country that isn’t a signatory to the Hague Convention it may be hard to get an order for the child’s immediate return to the UK.
Whatever the nature of the breach of court order, the court can enforce the order and impose penalties on the parent who breached the court order. The penalties will depend on the court’s view about the circumstances of the breach of court order as well as the severity and frequency of the breach. The court can:
Impose a community service order and order a parent in breach of a child arrangement order to carry out up to 200 hours of community service
Fine the parent in breach of the court order
In rare cases a prison sentence can be imposed on the parent in breach of the court order
Order a parent to pay the other parent compensation if the breach of the court order led to loss, such as unpaid time off work.
As every breach of a court order has a different impact on a family it is best to take legal advice before applying to enforce an order as it may, for example, be preferable, to apply back to court to vary the existing child arrangements order or other type of children order.
We are Manchester and Cheshire Children Law Solicitors
Evolve Family Law specialise in separation and children law matters. If you are worried about your ex taking your child or need representation in child arrangements order proceedings call us or complete our online enquiry form.
Evolve Family Law offices are located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our children law solicitors are experienced in working remotely and offer meetings by telephone appointment or video call.
We are delighted to highlight that some good news has come out of Europe. New EU regulations have been set out to help protect children and parents involved in cross border child custody and access disputes.
Protecting children in cross border disputes
On the 25 June, the Council of the EU adopted a revision of a regulation setting out rules on the jurisdiction, recognition and enforcement of decisions in:
Parental responsibility matters;
Intra-EU child abduction
The council said that one of the main objectives of the revision to the EU regulation was to improve the current protection that EU directive gives to children in cases of cross-border children disputes, for example:
Custody (nowadays referred to as residence or a child arrangements order in the UK );
Access rights (nowadays referred to as contact or a child arrangements order in the UK );
The focus of the new EU regulations is to ensure when resolving cross border children disputes involving more than one EU country that :
The focus is on what is best for the child;
Judicial co-operation between EU countries is faster and more efficient to make sure the child’s well-being comes first. It is anticipated that speedier court decisions will be made through abolishing the requirement for an exequatur (an intermediate procedure required to obtain cross-border enforcement).
People often assume that EU law will not affect them and their families but statistically there are about 140,000 international divorces per year. It is reported that there are about 1,800 cases of parental child abduction in the EU. The number of international divorce cases rises each year as people become increasingly mobile because of work and travel opportunities.
With the update of the Brussels IIa Regulation, the intention is that a child abducted by one parent from an EU country and taken by the parent to another country within the EU will be returned much faster to the country where he or she is used to living in.
Top Manchester children solicitors have welcomed the new EU regulation but have issued a note of caution. UK families caught up in EU cross border disputes will only get the protection and assistance of the new regulation whilst the UK remains in the EU. Subject to Brexit, the additional protection may be short lived. That will not stop child custody solicitors from fighting to reunite parents and children caught up in cross border child custody and access disputes.
The top tip if you fear child abduction or need to enforce a UK custody or child arrangements order across different border jurisdictions is to take early specialist child custody legal advice on your options and to act quickly.
For legal help with child custody and access or child abduction please contact us
If a parent had asked me the question "After my divorce, can I move to another part of the country with my child?’’ a few months ago I would have said "Yes you can", unless the family situation was complicated.
As a Manchester children solicitor it is always hard to explain to a parent why different rules apply if, after a separation or divorce, you want to relocate in the UK or abroad with your child.
The law and moving within the UK with a child
The law on relocating with a child within the UK not always clear. Imagine the scenario of a parent who wants to move from Manchester to Cornwall. Anyone who has made the trip by car, train, coach or plane knows that it is far easier and quicker to get to some locations in France or Spain than get to Cornwall.
Until recently, our children solicitors’ advice would have been that it was unlikely that a court would stop the primary or main carer of a child from moving within the UK. That advice was given whether it was a move from Cheshire to Derbyshire or further afield, for example, to Devon.
The only reported family court cases where a parent, usually the mother, had been prevented from moving within the UK with a child was when there were highly exceptional circumstances. For example, the child had a disability.
The internal relocation of children and the case of BB V CC
The case that is proving of such interest to Manchester children solicitors is that of a 3-year-old little boy in a family court case labelled ‘’BB V CC’’.
The mother and father separated and the move took the child from South East England to the North. Court proceedings were started. The court made a shared custody or child arrangements order and said the mother would need to move back to the south with the child so that shared custody with the father would work.
The child’s mother appealed against the decision.
The facts of most family cases are a little more complex than the bare bones. In family cases, it can be the detail that sways a judge’s decision. In every family court case, the decision has to be about what is in a child’s best interests.
In the case of BB V CC, the parents had an arranged marriage. The mother came to the UK to live with her husband at the paternal family home in London. When the child was about one the parents separated. The mother relocated to the North.
The father saw this as child abduction as the mother had not discussed the plan with him. The mother made serious allegations of domestic violence against the father and his parents.
The court decided that the allegations of domestic violence against the paternal family were not established. The judge was concerned that parental alienation might take place if the father was not able to share the care of the little boy.
The court ordered temporary contact but said the mother should relocate back to the southeast, near to where the father resided.
The court said if the mother did not move back to the southeast with the child the court would think about giving the father custody of the child.
The mother appealed against the judge’s decision. She said there were no exceptional circumstances that should require her to relocate with the child within the UK.
The appeal judge decided that the care of the little boy should be shared. The court said it was not possible for both parents to share the care of their son and live at other ends of the country. The judge therefore refused the mother’s appeal.
Parental alienation and moving after divorce
In the court judgment, the judge said she thought that parental alienation might take place if the mother stayed in the northeast and brought up the child with infrequent contact with his father.
The judge said the child could suffer emotional harm if parental alienation took place.
Internal relocation and exceptional circumstances
The judge in the case of BB V CC considered the case law and decided that a children case did not have to be exceptional in order to make an internal relocation order.
The judge said that the court should assess what was in the child’s best interests, and that the child’s welfare should be the court’s paramount concern.
Opposing the internal relocation of children
The court decision of BB V CC is likely to increase the number of parents wanting to bring court applications to try to use the court process to stop a parent and child from moving within the UK.
Our children solicitors anticipate that, for parents wanting to move, it will be argued that the case of BB V CC should be looked at on its family facts. Namely the judge’s dismissal of the allegations of domestic violence and her concerns about parental alienation by the mother if the child was brought up a long distance away from the father.
The law and relocating abroad with a child
The law says that if a parent wants to take a child abroad to live then they need the written agreement of the other parent or a court order giving them permission to take the child abroad to live.
How can Evolve Family Law Solicitors help?
To get legal assistance from our children law expert Louise Halford about the internal relocation of children in the UK , children law applications and child arrangements orders please contact us.
For one mother there was a happy ending, all thanks to the Court of Appeal. The appeal judges decided to reverse an earlier Court’s decision that said two children should be returned to the USA whether or not their mother could get a visa to re-enter the States.
The family Court appeal made all the difference.
The family Court appeal centred on whether two children, age 5 and 3, should return to their country of birth, the USA, at their father’s request under a Hague Convention Court application. The mother had taken the children to England, the country of her birth, without a USA Court order or the father’s agreement, after marriage difficulties made her conclude that she and the children should live in the UK. If the mother had realised the complexity of the immigration issues facing the father and herself she may well have thought twice and not taken the children out of the USA.
For the children immigration wasn’t a problem as they had dual citizenship, having been born in the States and having British citizenship through their mother. The children’s Pakistani father was classified as an illegal over-stayer in the USA and if he decided to come to the UK to challenge Court rulings or to see the children he faced not being able to get back into the States, a country that he had called home from the age of 12. For the mother, as a British citizen who had entered the USA on a temporary visa and married the father in the States, it was unlikely she would be able to get a visa to go back to the States.
The situation of both parents was stark. If the father ‘won’ his Hague Convention application and the Court ordered the return of the children to the States to enable the USA Court to decide on what was in the children’s long term interests, then the mother was unlikely to get a visa to go back with them. The High Court ruled in the father’s favour and the mother felt she had no alternative other than to appeal.
The Court of Appeal then faced the dilemma of deciding if the children would be exposed to a grave risk of harm if returned to the USA under the Hague Convention. The mother ran this argument as there are limited defences available to try and stop a Hague Convention ordered return. The Appeal Court concluded that the children could not be removed from their primary carer despite the fact that the mother had created the situation that the family found itself in and even though the Appeal Court decision made contact between father and children problematic given his precarious immigration status in the USA.
The family circumstances may appear unusual but as a child abduction solicitor I often have to investigate the immigration issues that arise after a child has been taken out of or has entered the UK and present the best possible evidence on immigration status and attachment. It is vital to do so as immigration status can be the key to the Court decision, as it was in this case as the children’s attachment to their mother as their primary carer, meant they would be at risk of harm in returning to the States without her. Would you risk it? The High Court decision, reversed by the Court of Appeal, shows just what a risk was taken. Sadly though there are no winners or losers in this family situation as the father now faces the same immigration dilemmas and difficulties in seeing his children.
For help with child abduction or children law please contact us
In the immediate aftermath of a parental separation it can feel devastating to not be there every night to read a bedtime story to your child or, if they are older, to help them with their homework. Imagine how much more difficult it is to come to terms with a separation if one parent announces their decision to move abroad with a child. It’s highly unlikely that the parent left in the UK will be able to continue to see the child each week, take the child to ballet or football practice or to be there as a taxi service after the first school dance.
I may paint a vivid picture but that is the reality for the parents I represent in child relocation applications. As a specialist children and child abduction lawyer I am in the privileged position of meeting parents and getting a snapshot of their family lives. That’s necessary to help me gain a real appreciation of why a parent is desperate to move abroad with their child or how not only a parent but the child’s extended family will be effected if a child does move abroad.
What happens if a parent objects to a move abroad?
If one parent wants to move abroad and the other parent objects there are a number of alternatives:
The parent can still move abroad – they just can't take their child with them unless they get the other parent’s agreement or Court permission;
The parent could take the child abroad without agreement or Court order – that may amount to a criminal offence under child abduction law and ultimately could lead to the child’s removal from the parent;
The parent could apply to Court for permission to take the child abroad to live or the other parent could apply to Court for an order prohibiting the child’s removal from the UK.
Even after Court proceedings have been started it can sometimes be possible to reach an agreement over whether a child should move abroad. It is my job when representing parents facing an application for a child to live in a foreign country to weigh up the chance that the Court application will be successful, and if the prospects are high, to negotiate the best contact arrangements.
How does a Court decide my child’s future?
Whether the Court is deciding on whether your child should move to France or Bermuda or if the child should live with you or their other parent the Court has to look at what the judge thinks is in the child’s best interests taking into account a set of criteria known as the ‘’welfare checklist’’.
When a judge makes the decision if a child should relocate abroad the child’s interests aren’t paramount as the Court has to consider the effect of granting or refusing the application on both parents. That is why it is so important for a solicitor to know all about family life and not only what the child will gain and lose by a move abroad but how the Court decision will impact on each parent.
A parent refused permission to take their child to their country of origin and where all their extended family still live may find the Court refusal more difficult to accept than a parent who wants to move for lifestyle choices or because they have found a new job based abroad.
No two parents are the same and even if the parents of two children in different families have the same amount of contact with their child each week the emotional effect of a move on the parent left behind can be very different; one parent may quickly adapt to travel abroad to see the child and the other may become depressed and unable to come to terms with the Court decision.
Although the Court is focused on the child’s needs as a lawyer it is my job to not only to look at the Court criteria in relation to the child but also the impact of a decision on the parent I am representing. That’s because if either parent is devastated by the Court decision and can't come to terms with the ruling then it is bound to have a negative impact on the child. That is something that a Court needs to consider when deciding whether it is in a child’s best interests to move out of the UK.
If you are a parent contemplating a move abroad with a child or a parent facing a potential Court application then the best option is to get legal advice. The sooner a parent gets specialist advice on the pros and cons of making or opposing a Court application and what steps they and their lawyer will need to do to successfully get permission or to oppose an application the better. It is like many things in life: tomorrow belongs to those who prepare for it today.
For help with the process of taking a child abroad to live or for help in opposing an application please contact us
The question of whether a mother’s decision to relocate from Australia to England with her two young children amounted to child abduction has been the subject of a Supreme Court ruling called Re C.
The Court decision is of interest as it highlights the fact that often the decision to move from one country to another with children isn’t straightforward and therefore it isn’t easy to say what amounts to ‘’child abduction’’ and when ‘’habitual residence’’ changes from the country of origin to the country of relocation.
In re C, two parents were living in Australia with their two children, the marriage ran into trouble and the father agreed that the British mother and the children (who had Australian citizenship) could take a trip to the UK for 8 weeks. The father then agreed, by email, that the trip could be extended to up to a year. During the year the mother decided that she wanted to remain in the UK with the two children. This decision resulted in the father applying under the Hague Convention for the children’s return to Australia.
The legal question was whether the children remained ‘’habitually resident’’ in Australia as, on the father’s case, their stay in England was only temporary. If the Court ruled that the children remained ‘’habitually resident’’ in Australia the Hague Convention rules would be applied and the children would go back to Australia .The long term decision as to which parent the children should live with and in what country would then be decided by the Australian family Court. The Australian Court would have the option to rule that the children should stay in Australia with their mother or father or grant an application by the mother to return to the UK with the children.
The mother resisted the father’s High Court application that the children should be returned to Australia arguing that the children were now habitually resident in the UK so the UK Court couldn’t apply the Hague Convention rules and summarily return the children to Australia for the Australian family Court to decide on the children’s future. The High Court agreed with the mother, the father appealed and the Court of Appeal agreed with the father ordering the children’s return to Australia. There was a further appeal to the Supreme Court. The Court held that the father’s application under the Hague Convention failed because the children had become ‘’habitually resident’’ in the UK and therefore the English Court could decide where the children’s future lay. Not all of the Supreme Court judges agreed with the leading judgment and a reading of the Court case and the various judge’s views shows just how finely balanced and complicated the decision was.
The decision on whether the children were habitually resident in Australia or England all came down to when the mother formed her intention to remain in the UK with the children. Was it a case of a mother who was struggling to decide what to do and where to live with her two young children or a case of planned child removal by tactically getting the husband to agree to a one year stay in England?
Why does the case matter? If the children had retained their habitual residence in Australia then under the Hague Convention the UK Court would have had to return the children to Australia using a quick summary procedure and without looking at the merits of either parent’s case namely that the children would be better off being brought up in Australia or the UK. Once back in Australia the mother might have found it harder to argue that the children should return to the UK with her.
However as the Court has ruled that the Hague Convention doesn’t apply the UK Court can now carefully decide what is in the children’s best interests: to live in England with their mother or return to Australia with their father and the sort of contact time they should spend with the parent who isn’t going to be caring for them on a day to day basis.
What does this case mean for a parent travelling with children to the UK? For the parent who has come over to the UK with their children it shows the depth of analysis of the legal concept of ‘’habitual residence’’ and the pouring over of detail and, in the case or Re C, the review of correspondence to try to determine when the children lost their habitual residence in Australia. Despite the Re C ruling many parents should be wary of the risks of arguing that their children have become habitually resident in England and thus the Convention doesn’t apply. That is because if the UK Court rules against them on the legal definition of habitual residence or on the facts of their case they start on ‘’the back foot’’ if they have to return to the country they departed from for that country to rule on their children’s long term future. The dilemma remains – do you apply for permission to take a child to live abroad in the country in which the child lives and risk Court failure or risk travelling abroad and the Court ruling that the child’s habitual residence remains the country of origin thus forcing a Hague Convention return and a more challenging Court application in the country of origin.
What does this case mean for a parent agreeing to their children going abroad with one parent for an extended period? It may mean that if the parent receives legal advice they will be less likely to agree to a child going abroad for an extended holiday as if their child is at risk of losing habitual residence the Hague Convention won't apply thus making it a lot harder to recover children from abroad.
The dissenting Supreme Court judge’s views show just how difficult it is to define the concept of ‘’habitual residence’’ and how easy it is to fall foul of child abduction laws and conventions. As a child abduction lawyer the case of Re C shows just how finely balanced Court decisions can be and the importance of parents taking legal advice before they take their children abroad or agree to an extended trip abroad so that they make informed decisions.
For advice on any aspect of children or child abduction law please contact us.
Mr Justice Keehan sitting in the High Court of Justice Family Division delivered his judgment in the case of B v C  EWHC 1586 (Fam) on 18 March 2016. This case concerned an application by a mother (“B”) to relocate with her child (“A”) out of the jurisdiction to Israel and a competing application by the father (“C”) for a Child Arrangements Order regularising his contact with A.
The father collected A after nursery every Thursday and returned A to nursery on Monday mornings. The father sought a child arrangements order confirming the time he spent with A. The mother sought to relocate to Israel where her father was terminally ill to help her mother care for him and also her fiancé wished to return to Israel. In the alternative, she sought to reduce the father's contact. The father sought to remain in England and did not wish his contact with A to be reduced. There was ongoing considerable hostility between the parents who since separation had been engaged in continuous court proceedings with orders made at significant financial cost to them both.
The Judge was satisfied that it would be in A’s welfare best interests to grant the mother’s application to relocate with A to live in Israel. The Judge found that both parents loved A and were capable of looking after him. Both parents were connected to Israel and had family there. The mother’s relocation out of the jurisdiction would relieve her of the stress and pressures of the consistently hostile relationship with the father as he would remain in the jurisdiction. The amount of contact between the father and A would be reduced but he would have quality contact during the holidays.
Please see the attached judgement of Mr Justice Keehan.
B v C  EWHC 1586 (Fam)
To discuss this case, please email Louise Halford firstname.lastname@example.org