The past two to three years have been stressful for many people at one time or another. The challenges of the pandemic and lockdown and now an economic downturn test many people to breaking point. Difficult times can often push married or cohabiting couples too far and the pressures lead to a breakdown of the marriage or relationship. Where the couple are of different nationalities, the party living elsewhere from their country of origin often wants to return home when divorce is looming, or the relationship is at end and where they may have a support network.

If there are minor children of the relationship, difficulties can arise very quickly, if there are opposing views as to where and with whom the children should live. Where there is no agreement the court will intervene. The welfare and well-being of the children is the overriding consideration of the court and all decisions taken with regard to the children aim at supporting the best interests of the children. Ultimately, the court adopts a "no order" principle and will review the current position between the parties in relation to the children with a view to making a decision in the best interests of the children. The parents' wishes are a secondary consideration if they vary from the court's decision.

The emotional stresses and strains of the whole situation not infrequently results in one party returning to their home country with their children with no intention of returning. Parental child abduction is one of the most contentious and upsetting consequences of a relationship breakup; it leaves the left-behind parent facing a legal battle to obtain an order for the child to be returned to its country of habitual residence.

Daniel Theron, a partner, commented "the courts aim to cause as little disruption as possible to the daily lives of children caught up in the breakdown of their parents' relationship. Ideally, they should remain in the same country and if they are of school age, remain at the same school. However, often the divorce or breakdown of the relationship is so acrimonious that the parents refuse to come to an arrangement" Daniel went on to say "difficulties arise when one parent decides that they will return to their country of origin with their children without the intention of returning. If there is a real risk of parental abduction, there are legal steps that can be taken in advance to off-set the possibility of a child being removed from their country of habitual residence without consent."

Giambrone & Partners' lawyers in the family law team can initiate a Prohibited Steps Order under section 8 of the Children Act 1998 through the courts to prevent a parent from removing children from their country of habitual residence and is designed to prevent a child from being taken abroad to the detriment of the left behind parent without the express permission of the court.

A Prohibited Steps Order is not granted lightly, it is one of three provisions relating to child arrangements orders. A Prohibited Steps Order applies to one single issue connected to children of 16 years and under (usually parental abduction) and impedes the "step" referred to in the Order. The Order applies, even if the abducting parent has parental responsibility.

There are several other issues that can be controlled by the court with a Prohibited Steps Order that would materially change the life and living conditions of a minor child, for example:

  • 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 contact with particular people
  • Removing a child from their school;
  • Changing a child's name or surname;
  • Making decisions in respect of a child's medical treatment, etc.

The court will not make a Prohibited Steps Order without undertaking considerable investigations into the child's situation prior to the granting of a Prohibited Steps Order to ensure that such an Order is definitely necessary and definitely in the child's best interests. If there are no urgent circumstances, once an application for a Prohibited Steps Order is made an officer from Children and Family Court Advisory and Support Service (CAFCASS) is appointed to investigate the potential for an amicable agreement between the parents and avoid the need for court intervention.

After a thorough investigation has been conducted, if the CAFCASS officer believes that it is not possible for an amicable agreement with regard to the child's domicile, further concluding investigations will be carried out by CARCASS and a report will be submitted to the court with their recommendations.

The only time a Prohibitive Steps Order is made without the mandatory welfare checks is in the case of an emergency situation where it is suspected that a child may be imminently forcibly removed to another country.

Our experienced family lawyers point out that if a parent breaches a Prohibitive Steps Order they may be found to be in contempt of court which may be punishable by the imposition of a period of unpaid work, an Enforcement Order or a Suspended Enforcement Order or imprisonment. Our expert lawyers can help you to take action if you suspect that your former spouse is planning to move back to their home country and wishes to take the child or children of the marriage with them to live permanently outside the UK.

It is not always possible to pre-empt such action being taken by an abducting parent. A left-behind parent can undertake various steps under The Hague Convention on the Civil Aspects of International Child Abduction 1980. Giambrone & Partners; family lawyers advise that every attempt to resolve matters as early as possible to avoid the situation escalating and creating a situation that may be detrimental to the child or children involved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.