How to Prevent Parental Child Abduction Overseas

It is not a secret that divorces or relationship break-ups, in most cases, are one of the most distressing positions to be in, especially where there are any children of the marriage. If the couple are nationals of different countries this can further complicate the situation. It is not unexpected for a parent who is living away from their home country to wish to return home after the collapse of a marriage or relationship. If there are children of the marriage or relationship this can be a major problem as often the departing parent wishes to take the children with them. 

Regrettably, the desire by one parent to relocate abroad with the children is often not supported by the other parent and the situation descends into acrimony. Children of marriages or relationships where their parents are of different nationalities often hold dual nationality and dual passports, which means that it can be easier to remove the children covertly without the permission of the other parent or the court as in the recent case of Adam Batty who was removed from his legal guardian, his grandmother, by his mother and grandfather.

Daniel Theron, a partner, commented “Generally, parents, regardless of their nationality, share parental responsibility, the mother has automatic parental responsibility and the father or other parent has parental responsibility if he is listed on the child’s birth certificate. Other parties can obtain parental responsibility following a decision by the court. Decisions involving relocation to another country for the children of the marriage or relationship can be made by agreement between the parents or if there is no agreement between them, by a court order once the best interests of the children have been established. However, there are instances where the court decides that an individual other than the parent should be a child’s guardian” Daniel further explained “All too often the situation becomes entrenched in animosity resulting in parental child abduction when the overseas parent recognises that permission may not be granted, but decides to remove or retain the child overseas in any event. There are legal steps that can be taken if there are suspicions that children are to be permanently relocated abroad or indeed if an unlawful abduction or retention occurs.”

If you suspect that your children may be taken to the country of origin of your former spouse without the intention of returning them, Giambrone & Partners’ family lawyers can assist you with the legal steps that can be taken to prevent parental child abduction. 

A Prohibited Steps Order (section 8 of The Children Act 1998)

The family courts of England and Wales consider the best interests of children in all circumstance as paramount. A Prohibited Steps Order is one of the legal provisions available to prevent a parent from removing any children from the country in which they are habitual resident without permission and permanently relocating overseas. Such an order can control a range of issues relating to the child such as:

• 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 being moved to another location overseas;
• Preventing a child from contact with particular people;
• Preventing a child from being removed from their school;
• Changing a child’s name or surname;
• Making decisions in respect of a child’s medical treatment, etc.

However, a Prohibited Steps Order is never issued lightly. An application for a Prohibited Steps Order means that an officer of the Children and Family Court Advisory and Support Service (“CAFCASS”) will be appointed to conduct safeguarding checks and assist the court. Should the parties be unable to reach an agreement CAFCASS will be instructed to draft a report which will be submitted to the court with any recommendations. The court will duly consider the report and review any evidence and decide whether to grant a Prohibited Steps Order in the child’s best interests.

Giambrone & Partners’ family lawyers call attention to the fact that any contravention of a Prohibited Steps Order can be considered as a contempt of court and can carry sanctions such as:

• The obligation to carry out a period of unpaid work
• An Enforcement Order
• A suspended Enforcement Order
• Imprisonment

The court will consider the overall factual circumstances of the breach of a Prohibited Steps Order and make a proportional decision.

In the event that there is no Prohibited Steps Order in place, but one parent unlawfully abducts or retains a child without the consent of the other parent or all those who hold parental responsibility, the ‘left behind parent’ is entitled to initiate return proceedings under the 1980 Hague Convention on International Child Abduction. Such proceedings are complicated and our experienced lawyers suggested obtaining specialist legal advice from the outset.

International child abduction is becoming far more common. Giambrone & Partners’ multi-jurisdictional, multi-lingual lawyers have extensive expertise and capacity to deal with the threat of parental child abduction and to assist parents in the return of a child who has been unlawfully removed or retained from the country in which they are habitually resident.

If you believe that your child is at risk of being abducted, speed is of the essence and it is vital to seek expert legal advice as soon as possible.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you are concerned about the possibility of child abduction contact Daniel's clerk Sam Groom on SG@giambronelaw.com or please click here