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My Ex-Partner Has Taken Our Child Abroad and Will Not Return Them: Legal Rights and Solutions
International holidays should be an opportunity for children to spend time with family and enjoy new experiences. However, when parents are separated and have international connections, a holiday abroad can sometimes become the starting point of a serious family law dispute.
One of the most difficult situations arises when a parent takes a child abroad with the other parent's consent for a holiday but then refuses to return the child to England or Wales at the agreed time. This may amount to international parental child abduction.
The situation can be extremely distressing for the parent left behind. It is also an area of law where taking prompt and appropriate legal action can be critical.
Can a parent take a child abroad without the other parent's consent?
Under the law of England and Wales, a person generally needs the permission of everyone who has parental responsibility for a child, or the permission of the court, before taking the child abroad.
A mother automatically has parental responsibility for her child. Other parents may also have parental responsibility depending on their circumstances.
Where more than one person has parental responsibility, a parent should therefore not assume that they can simply take the child overseas without consulting the other parent.
A written letter of consent from the other person with parental responsibility will usually provide evidence that permission has been given. The details of the proposed trip, including the dates and destination, should be clear.
The position can be different where a Child Arrangements Order is in force. In certain circumstances, a person named in an order as the person with whom the child is to live may take the child abroad for up to 28 days without obtaining further permission, unless a court order provides otherwise.
What happens if a parent does not return the child after a holiday?
There is an important legal distinction between taking a child abroad with permission and subsequently refusing to return them.
For example, a parent may agree that their child can travel to Spain, Italy or another country for two weeks during the school holidays. If the parent then decides to remain abroad with the child and refuses to return them, the situation may constitute wrongful retention.
International child abduction can involve either:
- the wrongful removal of a child from their country of habitual residence; or
- the wrongful retention of a child in another country after an agreed period abroad has ended.
The circumstances of each case must be considered carefully, including the child's habitual residence, the parental rights that existed immediately before the removal or retention and any court orders or agreements concerning the child.
What is parental responsibility?
Parental responsibility refers to the legal rights and duties relating to a child's upbringing.
It includes important decisions concerning the child's education, medical treatment, home and general welfare.
Having parental responsibility does not necessarily mean that a parent has an automatic right to spend time with the child. However, where more than one person has parental responsibility, important decisions concerning the child's life generally need to be considered jointly.
This becomes particularly important when one parent wishes to move abroad with a child or take a child overseas for an extended period.
If parents cannot agree, the court can become involved.
What can a parent do if they believe their child is at risk of being taken abroad?
Where there is a genuine concern that a child may be removed from England or Wales without the necessary consent, it may be possible to apply to the Family Court for an appropriate order.
A Prohibited Steps Order can restrict a parent from taking a particular step in exercising parental responsibility without the court's permission. In appropriate circumstances, this can include preventing a child from being taken abroad.
A parent may also need to consider whether a Child Arrangements Order or another form of court order is appropriate, depending on the circumstances of the family.
A parent may also need to consider whether a Child Arrangements Order, Prohibited Steps Order or another form of court order is appropriate, depending on the circumstances of the family.
Where there is an immediate risk that a child will be removed from the jurisdiction, urgent legal advice should be obtained.
What if the child has already been taken abroad?
If a child has already been taken abroad or has not been returned at the end of an agreed holiday, the situation requires urgent attention.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides an important legal mechanism for seeking the return of children who have been wrongfully removed or retained in another contracting country.
The purpose of Hague Convention proceedings is generally to facilitate the child's return to the country in which they were habitually resident before the wrongful removal or retention. It is not ordinarily intended to determine which parent should ultimately have custody or where the child should permanently live. Those longer-term issues are generally matters for the courts of the child's habitual residence.
For cases involving England and Wales, the International Child Abduction and Contact Unit (ICACU) acts as the Central Authority for international child abduction matters.
Depending on the country involved, the left-behind parent may be able to use the Hague Convention process to seek the child's return. The procedure and available remedies will depend on the countries involved and the specific circumstances of the case.
What if the other parent took the child abroad legally but refuses to return them?
This is one of the most common sources of confusion.
A parent may have had permission to take a child abroad for a holiday. That permission does not necessarily amount to permission to relocate the child permanently or retain the child overseas.
For example, if a child was taken abroad for a two-week holiday and the parent subsequently refuses to return to England, the original consent to the holiday does not automatically mean that the parent had permission to keep the child abroad indefinitely.
The legal position will depend on the precise consent between the parents, any existing court orders and the circumstances surrounding the child's removal or retention.
What should you do if your child has been taken abroad?
If you believe your child has been wrongfully taken abroad or is being wrongfully retained overseas, you should consider taking action without delay.
Depending on the circumstances, you may need to:
- obtain urgent advice from a family lawyer experienced in international child abduction;
- contact the police where appropriate;
- gather copies of passports, birth certificates and relevant identification documents, also pictures of the child and the parent who wrongfully removed/retained the child abroad;
- provide details of the child's usual residence and whereabouts;
- gather evidence of the agreed holiday arrangements and the date on which the child was due to return;
- provide copies of any Child Arrangements Orders, Prohibited Steps Orders or other relevant court orders;
- preserve correspondence, emails and messages between you and the other parent; and
- consider whether an application under the Hague Convention or another legal procedure is appropriate.
GOV.UK advises parents whose child has been taken abroad without permission to seek legal advice and provides guidance on contacting the police and the relevant authorities.
Why urgent legal advice matters
International child abduction cases can become significantly more complicated as time passes.
The country to which the child has been taken, whether that country is a party to the Hague Convention, the child's habitual residence, the existence of parental responsibility and any existing court orders can all affect the legal options available.
Where a child has been taken to a country that is a party to the 1980 Hague Convention, there may be a specific mechanism for seeking the child's return. However, the Convention has exceptions and the outcome of each case depends on its individual facts.
The High Court deals with international child abduction cases in England and Wales. Practice Direction 12F sets out the procedure for cases involving children who have been brought into England and Wales or taken out of England and Wales without the appropriate consent.
How Giambrone and Partners can help
Giambrone and Partners' family law experts can assist parents dealing with international child abduction and cross-border disputes concerning children.
Our lawyers can advise on preventing the removal of a child from England and Wales, applications for appropriate court orders, and the legal procedures available where a child has already been taken or retained abroad.
Where international proceedings are required, our multi-jurisdictional team can also assist with coordinating legal advice across the relevant jurisdictions and working towards the protection and return of the child.
If you are concerned that your child may be taken abroad without your consent, or your child has already been taken overseas and has not been returned as agreed, it is important to seek specialist legal advice as soon as possible.