Parental Responsibility is defined in law by the Children Act as:

  • ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the ‘child at his property’.
  • People with Parental Responsibility are entitled to determine certain aspects of a child’s life, including but not limited to:
    1. Where the child should live.
    2. Where the child should go to school.
    3. What, if any, religion they have.
    4. What name they should have.
    5. Withholding or consenting medical treatment.
    6. Dealing with their money or property.

A child’s mother automatically has Parental Responsibility and does not lose it if she separates from the child’s father, whether or not they were married.

Fathers of children who are not or have not been married to the child’s mother will have Parental Responsibility if they are named on the Birth Certificate of the child.

You can make an application for a Prohibited Steps Order. This is an injunction that would prevent your former partner taking certain prohibited steps. Usually these would be to remove the child or children from your care or control or to attend the children’s school.

You can also apply for a Specific Issue Order if you are concerned that the former partner will take the children abroad. The court can require your former partner to return the children’s passports if he or she has them in his or her care and control.

Emergency applications must be supported by very strong evidence as usually a parent will seek such Orders to be made without prior notice to the other parent. If an Order is granted the court would normally set another hearing in about a week’s time, at which time the other parent will have the opportunity of being represented and putting his or her position to the court.

In the event an agreement cannot be reached between you, the court would have to list a matter for a Final Hearing to determine issues between you and the court would make directions for the filing of further evidence if required.

The court would also need to deal with the interim child arrangements that would need to be in place pending the final hearing.

In the event your former partner has abducted your children, the following options are available to you:

  1. Apply for an Order that the children be returned to you immediately and not be removed without your written consent or order of the court. The court can attach a Penal Notice to this Order which means if the other parent fails to comply, they could be held in contempt of court and a fine, suspended prison sentence or actual prison sentence could be imposed on them.
  2. In the event you believe there is an imminent risk of your partner taking the child or children abroad, you can contact the Police and ask them to issue a Port Alert. A Port Alert, when issued, will notify all Police forces and Immigration Officers of the child’s details. The child is placed on the Child Abduction list for a period of 28 days initially.
  3. You can also contact Her Majesty’s Passport Office and ask them to prevent the issue of a passport in a child’s name. If your child’s other parent holds another nationality you can write to the relevant Embassy, High Commission or Consulate of the other country asking them not to issue a passport to your children. They do not have to agree to such a request, but they may do so.
  4. You can seek a Wardship Order from the Family Court. A Wardship Order basically makes the court a de-facto parent of the child. The court can make the child a ‘Ward of Court’. This means that the High Court have a duty to the children to ensure their safety and protection. It would also prevent the child from being illegally removed from the jurisdiction of the court i.e. England & Wales, without the court’s permission.
    If your children have been abducted and taken abroad, a Wardship Order can assist a government in attempts to secure the child’s return from whichever country they have been taken to.

In order to move to a foreign country with your children, i.e. a country outside the court’s jurisdiction of England and Wales, you would need the consent of the other parent or an Order from the court giving you permission to permanently remove the children from the country.

If consent is refused, it can be a lengthy and costly process in obtaining such an Order, but we can advise you on the next steps to take.

If you are intending to make an application to relocate, it is of great importance that you have thought through thoroughly all the practicalities of what life will be like for you and the children in a new country. You will need to set your plans out in a great deal of detail in a Witness Statement.

You will need to deal with the following matters (this list is not conclusive):

  1. Your proposed living arrangements which will not only include details of your proposed residence but evidence that you have the financial means to pay for it.
  2. Details of your proposed employment in your new country.
  3. You will need to detail what support network, if any, you have in the new country whether it be family or friends.
  4. You need to have a clear plan as to where your child or children will go to school.
  5. You will need to consider any substantial climate change between England and Wales and your destination country and how this will affect the children.
  6. You will need to consider how you and your children are, if appropriate, going to learn the language of your destination country.
  7. You will need to set out in detail the healthcare arrangements that will be available for the children.
  8. You will need to consider and set out the financial viability of the proposed move and set out an estimated budget of monthly expenses and demonstrate how you will meet them.
  9. You will need to consider the contact arrangements that will need to be put in place to allow the other parent and his or her wider family to continue to see and have contact with the children.

If you are objecting to a proposed relocation application by the other parent for permission to relocate your children to another country, you will need to respond to the matters listed above which you challenge. You would also need to consider:

  1. How the proposed move would affect the children.
  2. Your perceived difficulties with having contact with the children if they were to move abroad.
  3. Any problems you foresee whether proposed living or educational arrangements for the children.
  4. The wishes of the children as you understand them.
  5. The effect of the move on both you and the children.

Practically speaking, technically you do not need the other parent’s agreement to you moving away from the area which you currently live as long as it is in England and Wales.

However, if you know the move is going to be contested, you should, depending on your proposed destination, make an application to the court for permission to re-locate the children. The court will have similar consideration as to the matters set out in paragraph’s 8 & 9 above, albeit that some issues, such as change of climate or a new language will not be relevant.

On considering an application for any of the proposed Orders set out herein, the court’s primary concern is the welfare of the child or children. The court will need to consider the following matters in all applications:

  1. The ascertainable wishes and feelings of the child concerned.
  2. The child’s physical, emotional, and educational needs.
  3. The likely effect on the child if circumstances changed as a result of the court’s decision.
  4. The child’s age, sex, backgrounds, and any other characteristics which will be relevant to the court’s decision.
  5. Any harm the child has suffered or maybe at risk of suffering.
  6. Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs.
  7. The powers available to the court in the given proceedings.

In contested proceedings, the court is likely to seek the assistance of either the Local Authority/Social Services who have been involved with the family previously or the Court and Family Court’s Advisory and Support Service (Cafcass).

Social Services or Cafcass may be appointed by the court to speak to both parents and the children before making recommendations to the court on the issues to be determined between yourself and the other parent.

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Would you like to know more?

For help and advice, talk to a member of our team. They can advise on the best options in your matter.

Call: 01708 229 444 Email us

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