When parents separate, the issue of visitation is often ironed out amicably and without needing to get the Courts involved. However, in some cases this is not possible and a Child Arrangements Order (CAO) will need to be issued to detail the child’s living arrangements.
Unfortunately, there are occasions where visitation arrangements or CAOs are not adhered to – undoubtedly causing a lot of anguish for the parent who usually has custody of the child. If this happens to you, your first instincts may either be to contact the police or try to take the child back yourself – neither of which are viable options.
Instead, you will need to follow specific legal procedures to ensure the return of your child. With this in mind, here are our thoughts on what to do if your ex is not returning a child after visitation.
Who Has Parental Responsibility?
The first point we need to consider is the issue of parental responsibility. This is a legal concept that outlines the rights, obligations and duties of a parent, such as:
- Choosing a name for the child
- Providing a home for the child
- Making decisions about the child’s education
- Maintaining and protecting the child
The child’s mother is automatically granted parental responsibility, as she will always be present on the birth certificate. The father will also be given parental responsibility if they:
- Were married to the mother at birth or afterwards
- Are named on the birth certificate (if the child was born after 1st December 2013)
- Have been granted parental responsibility by a Court
- Entered into a parental responsibility agreement with the mother
Parental responsibility also applies to parents in same-sex couples, though the criteria are different and more complex. If this impacts your situation, it is advised that you seek advice from a solicitor.
Unless a Court has specifically stated otherwise, shared parental responsibility gives both parents an equal opportunity to set up a home for the child. Because of this, there are certain legal processes parents need to follow if their ex is not returning the child after visitation.
Is a CAO in Place?
The second key element is whether a CAO has previously been put in place, as this will determine what steps should be taken next. If a CAO has not been actioned, you will need to ask the Court to determine whether your child should live with you or your ex partner.
Once you have applied for a CAO, both you and the other parent will be given notice of a hearing. This will give the two parties a chance to put forward their case and allow the Court to make an informed decision based on the evidence.
If you believe that there are legitimate concerns about the child’s safety, you can apply for a “without notice hearing”, which will not inform your ex and allows for the hearing to take place sooner. This is only a temporary solution, however, as a full hearing will have to take place in the future.
Should a CAO already be in place, you will need to notify the Court that the order has been breached. Breaches of an order can be minor (such as returning the child an hour later than scheduled), or major. It is important that you keep a record of every breach, no matter how minor, so you can present evidence to the Court.
Enforcing a CAO
If your ex is in breach of a CAO, you must apply to a Court for an Enforcement Order. However, if the CAO was granted before 8th December 2008, you will first of all have to make an application for a warning notice to be added to the order before seeking enforcement.
This is because the other parent must be fully-informed of the consequences if they fail to comply with the Court Order. All CAOs issued on or after 2008 already contain a warning notice – so you are free to apply for enforcement straight away.
Can the Police get Involved?
If your ex partner is not returning a child after visitation, perhaps your first instinct would be to call the police. However, this will usually only work if the other party does not have parental responsibility or the child is in physical danger.
Should both parties have parental responsibility, neither the police or social services will be able to intervene – as they do not have a remit to choose between parents. You will therefore have to apply to a Court to enforce your CAO.
The police will intervene if there is legitimate suspicion that the child may be in danger. If this is the case, the correct procedure is to ask the Court for an emergency (same day) enforcement order. This could result in the police accompanying a Children and Family Court Advisory and Support Service (CAFCASS) officer to remove the child from the other parent’s care.
Fear of Abduction
For families where one or both parents have an international connection, there may be a legitimate fear that the child will not be returned if they are taken out of the country. If this applies to you, the first thing you should do is request a Prohibited Steps Order from a Court.
When granted, this Order will prevent your ex from taking your child abroad without your permission. If they do so regardless, they will be found guilty of abduction.
Although a Prohibited Steps Order may commonly be used in cases of taking the child abroad, it is also valid for trips to other parts of the UK as well. This is particularly useful if one parent has connections to family elsewhere in the country.
Expert Advice is Crucial.
If your ex is not returning your child after visitation, or you suspect there is a possibility it may happen, it is essential that you seek professional assistance as soon as possible. This is where Shams Williams can help.
Our team of experienced Family Law solicitors can help you apply for all the necessary Court Orders and will provide expert guidance throughout the entire process. This gives you the peace of mind you need that everything is being taken care of.
