The idea of an ex-partner refusing to return your child is enough to flood any parent with worry and it can be a very emotional and stressful situation.
When a parent refuses to give back a child, many people’s first instinct is to ensure their safe return as quickly as possible and by any means necessary.
Unfortunately, it is not always as simple as demanding their return or calling the police and, therefore, it is important you take a clear-headed approach and follow the correct legal steps.
In this blog, we are going to look at what those legal steps are and how you can use them to have your child returned. Before we move on to the process, it is worth highlighting the obvious.
In any situation where legal action needs to be taken quickly and effectively, it is important to speak to an expert solicitor. While the information below will go a long way to ensure you understand what recourse you have, there is no substitute for professional advice specific to your situation.
An important part of identifying what you can do to recover your child is understanding who has parental responsibility.
Parental responsibility is defined by the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child’. Simply put, this means a parent has the responsibility to:
Parental responsibility is automatically conferred on the mother, as she is always listed on the birth certificate but the other parent often also has the same responsibility.
A father will have parental responsibility if:
Parental responsibility can also apply to partners in same-sex couples. However, the legalities around this can be more complex so you may consider speaking to an expert if this impacts your situation.
Unless a court order says otherwise, parental responsibility creates an equal playing field between both parents, meaning both have the right to provide the child with a home.
That does not mean you cannot secure the return of your child from your ex-partner, but it will have a significant impact on how you go about doing it.
If you are told your child will not be returned to you by their parent, a reasonable first thought is to call the police. However, you may find the police and other bodies such as the social services are unable to recover your child for you.
This is where whether your ex-partner has parental responsibility becomes so important.
If they do not, the police can return a child to its mother, as she has sole responsibility. If, however, they do have parental responsibility, the police will not be able to recover the child, as they have a remit not to choose between parents.
While the police and social services may be unable to recover your child under normal circumstances, they do have additional powers if there is a real and immediate threat to your child’s safety.
If you suspect your child may be in danger, ensure you speak to the police straight away and contact a solicitor.
In most cases, the return of your child from a parent requires an order from the court. The most common forms of orders you are likely to come into contact with are Child Arrangement Orders and Prohibited Steps Orders.
When couples break up, many are able to agree on terms of child maintenance and visitation without the need for the courts to intervene. However, if this agreement was only informal and is breached, you will require the court to decide the exact terms of how the child is managed.
Who the child lives with is determined via a Child Arrangement Order, along with which other relatives they can have contact with and the type of contact (eg. in person, on the phone, or by letters).
If your child will not be returned to you by someone with parental responsibility, you can apply for a Child Arrangement Order to confirm they should live with you.
Following application to the court for the order, you will be given notice of a hearing along with your partner. This will give you both a chance to argue your case and allow the court to make an informed decision.
If you are concerned about the safety of your child, you can make a ‘without notice hearing’. This means your ex-partner will not be informed and the hearing will take place quicker.
This can provide a court order for the return of your child quicker, though it is only a temporary solution. A full notice hearing will still need to take place, at which point the order may be overturned.
The other type of order you may consider applying to the court for is a Prohibited Steps Order. This limits both parents from carrying out certain events or trips without the express permission of the other.
This is useful if you are worried your ex-partner may attempt to, for example, take the child abroad or to another area of the UK without your knowledge.
Failure to comply with this order is treated as a criminal offence and can result in the person who has taken the child being charged with kidnapping.
If you want to apply for either a Child Arrangement or Prohibited Steps Order you should seek the advice of a solicitor.
If your ex-partner has parental responsibility and there are no orders from the court in place, you may find it difficult to ensure the return of your child immediately.
However, that does not mean there is nothing you can do. By applying to the court for one of the above orders, you can create a legal obligation for the return of your child and take important steps to ensure it never happens again.
If an ex-partner is currently refusing to return your child or you are worried they may do so in the future, speak to Nayyars today for expert advice and support.