Parental Responsibilities

Financial provision upon separation for the children of unmarried couples is dealt with in Schedule 1 of the Children Act 1989.

It is a financial claim to provide for the children of a relationship for income and capital based on the needs of the children, not the cohabitee.

Parental Responsibility are the rights and duties given to a parent, and others with a close connection with the child, to take major decisions concerning a child’s life. Responsible parenting is to endeavour to reach these decisions with the other parent. If this is not possible, the court will decide.

A mother always automatically has parental responsibility. There are a number of ways for a father and others to acquire Parental Responsibility for a child. These are:

• A mother and father both have parental responsibility if they are married to each other at the time of the child’s birth or subsequently
• By both parents entering into a Parental Responsibility Agreement
• This is a straight forward document (one for each child) that is completed by both parents and lodged at the Family Court
• By an order of the Court
• For children born after 1 December 2003 of unmarried parents, the father has parental responsibility if he was present when the Birth was registered and his name is on the Child’s Birth Certificate as the child’s father

Further provisions can also apply for those in same-sex relationships, or with families who have been involved in surrogacy.

A lot has changed since the Hague Convention was first introduced.­ It was then rightly intended to stop the non-resident parent, perhaps frustrated at the lack of contact, from snatching the child.­ It worked well and appropriately.­ However over the years the abducting parent has become increasingly the primary 'residential' parent, perhaps feeling isolated in another country which is perhaps the country of the other parent, perhaps unsupported financially, without family nearby, perhaps badly treated with domestic violence, and being unable in reality to apply to relocate.­ Such primary residential parents then take a child permanently abroad, often being unaware of the seriousness of doing so or indeed without even knowing of the need for permission.­ Having done so, they then find that the full panoply of international law, courts, police, criminal sanctions are against them with an immediate return to the country from which they fled, often feeling, and actually being, in a worse situation than they were before they left.­

The appropriate response is not to abduct but to obtain permission or a court order to relocate.­ However there are very different criteria for relocation across the world.­ This situation needs realistic appraisal.­ It can often work unfairly.­ Some countries are very strict and may not allow relocation.­

Equally there are still, sadly, too many child abductions away from the primary residential parent, especially to non-Hague convention countries.­ Sometimes the child goes missing altogether or for many years.­ Sometimes the courts of the country to which the child has been abducted will not assist in any return and perhaps even transfer custody to the other parent, the national, often the father.­ Some parents have had to take drastic and dramatic steps to recover their children, even after many years apart.­ Genuine child abduction is still a major problem.­ Many countries are not doing enough or anything to secure the return of abducted children.­

Not necessarily. In this country, it is only a criminal offence to take a child out of the country without the request permission.  There is currently an inconsistency between the criminal and civil offence of child abduction in this country when the perpetrator is the child’s parent. Whereas the 1980 Hague Convention relates to both wrongful removal and wrongful retention of children, a criminal offence under s 1 of the Child Abduction Act 1984 is not committed when a parent lawfully removes a child from the UK but then retains the child beyond the agreed deadline.  Accordingly only wrongful removals are a criminal offence in this country.  If you commit a wrongful removal the matter can be referred to the police and parents are frequently prosecuted for this offence. Being found guilty carries a risk of a prison sentence!

There is also a risk that your child may be taken from you and handed to the other parent or to another suitable relative until the possible return of the child and/or future care has been resolved.­ If there is no suitable adult to look after the child, as a last resort the local authority may be asked to take the child into care although this is rare.­

Upon your return to the child’s country of residence, the police may take passports and other travel documents from you to prevent the risk of further abductions.­ These will not normally be returned until the arrangements for the future care of your child have been resolved.­

It is irrelevant if you are the parent with whom the child mainly lives, perhaps solely lives and/or you are returning to your home country and/or the other parent’s physical or financial behaviour towards you is making your life intolerable.­ Return of the child will still be ordered although safeguards for you and your child will normally be put in place for you on your return.­

It arises in one of two ways.­ First, taking a child abroad without the permission of the other parent (and anyone else with parental responsibility).­ This is known as 'wrongful removal'.­ Secondly if you had permission to take a child abroad for a period of time e.g., a holiday, retaining that child abroad at the end of the agreed period.­ This is known as 'wrongful retention' which is treated the same as wrongful removal.­

Child abduction proceedings in England for the return of a child abducted here are always in the High Court, dealt with by very experienced, specialist judges and with the parent whose child has been abducted being legally represented, often free of charge, by highly specialist and effective lawyers.­

Yes, but that lawyer will need permission from the English Central Authority (which is administered by ICACU) to do so free of charge.­ Normally ICACU only instruct lawyers on a specialist panel who will be able to represent you free of charge.­ International children work, and especially child abduction work, is a specialisation and requires special expertise.­

If you are defending the case as an alleged abductor, you can appoint a lawyer of your choice but you will not receive automatic legal aid.­ You can apply for legal aid in the normal way, based on means and merits tests.­

The left behind parent must demonstrate that they had the right to be consulted about the child’s relocation, which is called a 'right of custody' and that the child has been wrongfully removed or retained from its country of habitual residence. If they can establish these preconditions and they have the right to request the child’s return, there are 5 key defences that can been raised. They are:

• Consent
• Acquiescence
• Child’s objections
• Intolerability (also known as 'Article 13 (b)'); and
• Settlement

An abduction does not occur if the left behind parent consented to the move or subsequently acquiescenced to the child’s retention.­ There is often a disagreement about what was or wasn’t agreed and therefore it is useful for any agreement for a child to go abroad, on holiday or permanently, to be put in writing and signed by both parents.­

The child’s return will not normally be ordered if there would be a grave risk of physical or psychological harm or would place a child in an intolerable situation.­ This is a high burden.­ Normally anxieties about domestic violence or other lifestyle issues can be overcome by protective assurances enforceable in the courts of the country to which the child is to be returned.­ The risk must not arise from the effect of the abduction itself.­

The child may object to returning but the court will want to be satisfied about the child’s maturity, understanding and independence.­

A defence can arise if the child has been settled in his new environment for 12 months following the alleged wrongful removal or wrongful retention.­

The return will not be ordered if the child is 16 years of age although if there are younger siblings being returned, the court takes account of the fact that children should not normally be split up.­

You yourself will not be ordered to return: only your child.­ Of course you will expect and want to go as well.­ The Court should be asked to ensure that protective measures are put in place, known as 'safe harbour orders', so that you and your child return to a safe place and free from criminal or civil prosecution.­ The Court may provide that you are paid maintenance and that you have somewhere to live until the long term issues are determined by the Court.­ Without these safeguards in place, a court may not order a return.­

Generally yes.­ The English court does not have an obligation to return the child, and will therefore consider the welfare of the child more broadly.­ English courts will be more prepared to consider long-term issues, i.e., who is the best parent to look after the child and care for the child and in which country.­ It is often beneficial for your lawyer to work with a specialist lawyer in the other country to ascertain what would happen if the child were to be returned.

You, your friends and relatives in England would probably be ordered to attend Court to disclose the child’s whereabouts.­ Your solicitors in England may be forced to disclose your whereabouts or even information you had given to them.­ The English court may make a Court Order, communicated immediately to the courts and governments of the other country, for the child to be immediately returned to this country.­ A Court can also commit a parent or other relative to prison until a child has been returned.­ The Court has very wide powers to impose penalties on anyone who withholds information that may lead to the disclosure of a child’s whereabouts.­ This may include financial bonds.­ The English courts co-operate extensively with the courts of other countries in cases of missing and abducted children.

The Court can make very powerful orders when a child is missing.­ It is of paramount importance that the child is located quickly.­ This includes:­

• Orders against telephone companies to locate the address a telephone is used by an alleged abductor or the area from which mobile calls are made
• Orders for properties or other assets to be seized and perhaps even to be sold and for the money to be placed in an account to enable the other parent to utilise the money as a fighting fund for Court proceedings in this country or abroad for the location and safe return of the child
• Orders against banks to freeze accounts
• Orders against airline companies and ferry companies to disclose travel records
• Orders against friends and relatives to attend court to disclose whereabouts of parent and child
• Orders against internet companies to disclose the confidential IP address that would detail in which country an abductor is living and/or e-mail traffic
• Orders against lawyers to disclose whereabouts and to produce files for inspection by the court; this is a rare example of the courts having the power to overcome lawyer client confidentiality
• Orders to search a home and seize personal possessions that may give clues as to where the alleged abductor is living
• Orders against travel agencies to disclose all travel records that they have on file
• Orders against hotels to disclose details
• Orders against health authorities and medical practitioners to disclose any treatment given
• Orders against local authorities and welfare benefit offices

The above orders are only an example.­ This list is not exhaustive.­ Courts view the abduction of children and failure to disclose whereabouts very seriously indeed and use all available powers.­

Interpol can also be asked to intervene.­ This could eventually lead to extradition proceedings resulting in you and your child being forced to leave the country where you are living.­ This could result in your child being separated from you either in the country where you are living or on your return.­ Criminal proceedings are then likely.­

First, this is a reasonable fear for many parents in international families.­ Sadly abduction does occur with adverse, sometimes long term consequences for the child and parent.­ Threats by one parent to abduct a child should always be treated seriously.­ A number of steps can be taken to minimise the risk and they should be discussed with a specialist lawyer:

• Make sure you or someone known to the child always collects from school and other hand over arrangements with the other parent are strictly adhered to
• Have to hand and in advance detailed description and information, up to date and digital photographs and documents (e.g., birth certificate, copy passport) concerning the child to help trace the child; a lawyer can recommend a list
• Keep the child’s passport in a safe place
• Have to hand a list of telephone numbers of the police and others such as your lawyer
• Obtain a long-term prohibited steps court order to prevent the child being taken out of England or Wales or away from the care of the primary 'residential' parent
• Obtain the other parent’s passport during contact visits
• Obtain the fingerprinting form provided by Reunite
• Obtain a ports alert order if the risk of abduction is imminent i.e., under way, to warn airports etc.,
• Tell the school and others about your anxiety of an abduction so they are on alert
• If the child is old enough and mature enough, and with considerable care, tell the child to be very cautious and ask for help if taken away by the other parent.­ Ensure the child (and school) knows who, and who will not, be collecting the child from school or other activities

To succeed in an application to relocate to another country with your child, you must prove to the Court that you have carefully considered the move and that the relocation is in the best interests of your child.­ You must show that you have considered schooling arrangements for the child and that you have found a suitable home where you could live.­ You must provide a detailed and thorough plan to relocate, including how often your child will see the other parent, and where, how travel will be funded, what support network you will have, and how your child’s medical needs will be met.

The English court will expect the parent seeking to relocate to make substantial and generous proposals for contact for the left behind parent, sometimes including the costs of travel and including the making of an order for contact in the other country.­ This requires cooperation of lawyers in each country but is a necessary and expected cost of the relocation.­

Permission to relocate has historically been often given by the English courts but a change in case law in mid-2011 has made it harder, with a greater emphasis now on the best interests of the child.­ Previous law had tended to give priority to the wishes of the parent with whom the child was primarily living.­

A successful application will depend on very good preparation and careful planning of both the proposed move abroad and the proposed application for permission.­ It is a quite technical area of the law with judicial guidelines.­ Consult a specialist lawyer in the very early stages of the planning.­

Definitely.­ It is very wise to do so.­ It is then a permanent record.­ It can be evidence if any allegation of abduction is made subsequently.­ In certain circumstances it may be wise for the permission to state that it is given after legal advice.­ Some countries may require evidence of permission of the other parent to move to that country.­ These matters should be discussed with a lawyer.­

Applications to relocate permanently abroad with a child often arise within international families on parental separation when one parent has come from another country and wishes to return to their home country. It may be that they want to be near family, to recommence employment, or just to be at home, and wishes to take the child.­ Secondly, it arises sometime after parental separation when the primary resident parent has a good opportunity to seek employment abroad including to improve living standards for the parent and child.­ There may be requirements made by international employers for their employees to move countries, and the parent wants to take the child with them.­ Even more problematic are the so-called lifestyle relocations, when post separation one parent has met someone, perhaps has already become engaged or married, and wants to move to the other person’s country - or the parent simply wants to move abroad for a better lifestyle, invariably a warmer climate!­

In all of these situations, the inevitable consequence of the relocation is that the left behind parent has dramatically reduced opportunities for contact and ongoing involvement in the child’s life, education and upbringing and often a much-reduced relationship with the child.­ This can vary from state to state, bearing in mind travel arrangements, flight times and even time zone differences. The child can risk losing the present involvement with grandparents or other family members, schools and friends, sports or musical cultures, language and other elements which may be important for the child.­

If permission to relocate is not given by the other parent, an application is made to the court for permission (also known as 'leave') to remove the child permanently from the jurisdiction of England and Wales.­ It is known as 'leave to remove' or 'child relocation'.­ With many international families within England, these applications are quite frequent.­ 

Until mid-2011, English relocation law had hardly changed over several decades, despite massive changes in parenting and international families.­ Generally, provided the primary residential parent had good plans, well researched, affordable, allowing good, although inevitably lesser, contact with the other parent and it was not prompted by maliciousness to the other parent, leave would normally be given to relocate.­ Of course the court would endeavour to make sure that good alternative contact arrangements are put in place for the other parent, but this would not stop relocation.­

But now the court will look at what is the best interests of the child.­ It will naturally look at what has been the caring arrangements for the child but if there has been any real element of jointly looking after the child, the court will now be more reluctant to allow a relocation.­

Many other countries across the world are restrictive in granting leave.­ Some are, frankly, highly restrictive and hardly ever give permission, especially to a non-national parent seeking to leave.­ Other countries permit relocation but place much greater weight than England on the impact on the left behind parent, the child’s grandparents and other wider family and the effect on family life.­ Some countries give greater weight to the voice of the child.­ Different approaches abroad can be of relevance if on a return after a child abduction the primary residential parent then seeks to relocate and finds it being refused.­

There are no international laws on child relocation, in contrast to child abduction.­

This can vary from case and can depend on who is on the birth certificate and where the child was born. If the child’s father does not have Parental Responsibility, you do not normally need the father’s consent before you take the child on holiday.­ However, if the child’s father has regular contact with the child, we recommend you to inform him of your arrangements.­ This may prevent an unnecessary application by him to try and prevent your holiday.­ It can also overcome any unjustified but potentially problematical allegations of abduction.

This can depend on what country your order is from, and if they are a signatory to certain international conventions.­ Across states who are party to the 1996 Hague Convention, contact orders and orders for return of a child are automatically recognised and enforceable, without the need for local or any more court orders.­ There are requirements for translations and certificates by the judge who made the order.­ It is a good idea to consult a solicitor when you arrive in the country where you will be living if you are intending to move.­

In any event, the consequence of the move abroad is that the contact arrangements may need to be varied.­ However this is from the starting point of the existing order.­

Experience has shown much success where the parties have the benefit of mediators experienced in child abduction issues, and where the mediation carries on in parallel to court proceedings which occur very fast for the possible return of the child. Outcomes may include agreements about future child arrangements beyond the central issue of the abduction itself. Similarly mediation works very well in relocation matters, when one parent wants to move abroad with a child and the other parent is opposed.

A nominal maintenance order is made in favour of one party where they presently have sufficient income to meet their needs and no substantive spousal maintenance is presently required, but it may be needed in the future.

A nominal maintenance order is often granted in favour of a parent who is a primary carer of children as a safeguard against any significant change in circumstance in the future which will render them unable to meet their financial need themselves so they can ask the Courts to vary the nominal order upwards to a substantive amount.

Where care of a child is shared then a nominal maintenance order may be made on a reciprocal basis between each parent. In practice it is rare for a nominal maintenance order to be varied to substantive maintenance.

Spousal maintenance is maintenance that is paid by one spouse or civil partner to their former spouse or civil partner following a divorce or civil partnership dissolution. It is different to child maintenance.

Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life known as a 'joint lives order'.

Spousal maintenance ends if the recipient remarries or enters a civil partnership or if either party dies. It may be varied or dismissed by the courts on a change in circumstances.