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Parental Child Abduction – Preventative Measures – Divorce



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The past two to three years have been stressful for many people
at one time or another. The challenges of the pandemic and lockdown
and now an economic downturn test many people to breaking point.
Difficult times can often push married or cohabiting couples too
far and the pressures lead to a breakdown of the marriage or
relationship. Where the couple are of different nationalities, the
party living elsewhere from their country of origin often wants to
return home when divorce is looming, or the relationship is at end
and where they may have a support network.

If there are minor children of the relationship, difficulties
can arise very quickly, if there are opposing views as to where and
with whom the children should live. Where there is no agreement the
court will intervene. The welfare and well-being of the children is
the overriding consideration of the court and all decisions taken
with regard to the children aim at supporting the best interests of
the children. Ultimately, the court adopts a “no order”
principle and will review the current position between the parties
in relation to the children with a view to making a decision in the
best interests of the children. The parents’ wishes are a
secondary consideration if they vary from the court’s
decision.

The emotional stresses and strains of the whole situation not
infrequently results in one party returning to their home country
with their children with no intention of returning. Parental child
abduction is one of the most contentious and upsetting consequences
of a relationship breakup; it leaves the left-behind parent facing
a legal battle to obtain an order for the child to be returned to
its country of habitual residence.


Daniel Theron,
a partner, commented “the courts aim to
cause as little disruption as possible to the daily lives of
children caught up in the breakdown of their parents’
relationship. Ideally, they should remain in the same country and
if they are of school age, remain at the same school. However,
often the divorce or breakdown of the relationship is so
acrimonious that the parents refuse to come to an arrangement”
Daniel went on to say “difficulties arise when one parent
decides that they will return to their country of origin with their
children without the intention of returning. If there is a real
risk of parental abduction, there are legal steps that can be taken
in advance to off-set the possibility of a child being removed from
their country of habitual residence without
consent.”


Giambrone & Partners’ lawyers in the family law team

can initiate a Prohibited Steps Order under section 8 of the
Children Act 1998
through the courts to prevent a parent from
removing children from their country of habitual residence and is
designed to prevent a child from being taken abroad to the
detriment of the left behind parent without the express permission
of the court.

A Prohibited Steps Order is not granted lightly, it is one of
three provisions relating to child arrangements orders. A
Prohibited Steps Order applies to one single issue connected to
children of 16 years and under (usually parental abduction) and
impedes the “step” referred to in the Order. The Order
applies, even if the abducting parent has parental
responsibility.

There are several other issues that can be controlled by the
court with a Prohibited Steps Order that would materially change
the life and living conditions of a minor child, for example:

  • Removing a child from the custody of a parent or other approved
    caregiver;

  • Preventing a child from being moved to another location within
    the United Kingdom;

  • Preventing a child from contact with particular people

  • Removing a child from their school;

  • Changing a child’s name or surname;

  • Making decisions in respect of a child’s medical treatment,
    etc.

The court will not make a Prohibited Steps Order without
undertaking considerable investigations into the child’s
situation prior to the granting of a Prohibited Steps Order to
ensure that such an Order is definitely necessary and definitely in
the child’s best interests. If there are no urgent
circumstances, once an application for a Prohibited Steps Order is
made an officer from Children and Family Court
Advisory and Support Service (CAFCASS)
is appointed to
investigate the potential for an amicable agreement between the
parents and avoid the need for court intervention.

After a thorough investigation has been conducted, if the
CAFCASS officer believes that it is not possible for an amicable
agreement with regard to the child’s domicile, further
concluding investigations will be carried out by CARCASS and a
report will be submitted to the court with their
recommendations.

The only time a Prohibitive Steps Order is made without the
mandatory welfare checks is in the case of an emergency situation
where it is suspected that a child may be imminently forcibly
removed to another country.

Our experienced family lawyers point out that if a parent
breaches a Prohibitive Steps Order they may be found to be in
contempt of court which may be punishable by the imposition of a
period of unpaid work, an Enforcement Order or a Suspended
Enforcement Order or imprisonment. Our expert lawyers can help you
to take action if you suspect that your former spouse is planning
to move back to their home country and wishes to take the child or
children of the marriage with them to live permanently outside the
UK.

It is not always possible to pre-empt such action being taken by
an abducting parent. A left-behind parent can undertake various
steps under The
Hague Convention on the Civil Aspects of International Child
Abduction 1980
. Giambrone & Partners; family lawyers advise
that every attempt to resolve matters as early as possible to avoid
the situation escalating and creating a situation that may be
detrimental to the child or children involved.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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