The school holidays may be a dim memory but some parents may be experiencing a new challenge if their former spouse or partner has decided to keep their child overseas.

This may be many parents’ worst nightmare, but there are many reasons why this might happen, including an ongoing dispute over who should have care of the child, but in all scenarios, it can be very distressing for both parent and child.

If you find yourself in this position it is important that you understand your legal rights as a parent or guardian.

The limitations of shared parental responsibility

Neither parent is allowed on their own to make significant decisions about a child, where both parents have parental responsibility.

This includes decisions about where the child lives, attends school or the type of medical care that they may need to receive.

A parent on their own is not allowed to simply follow their own wishes and opinions, without prior discussion or arrangement.

Where there is disagreement between parents and a solution cannot be found amicably, including with the help of mediation, then it may be down to the Courts to adjudicate.

In many cases, however, there may already be an existing court order in place that sets out where the child resides.

Failure by any party to follow the order’s arrangements is likely to mean that the parent or guardian is in breach of the order, which could result in sanctions being imposed.

The only exception to this is where there is a genuine welfare or safety concern meaning that arrangements must change, but these are rare and may still be subject to review by the Courts.

If this is the case, then the parent that is refusing to return the child in accordance with the order or prior agreement might provide legitimate reasons outlining why it is in the child’s best interest to not return them to the other parent.

In cases where there is an order, this may result in the Courts taking action to vary the original agreement in line with the reasoning provided.

Alternatives to the courts

We understand that many parents would rather avoid having to go to the Courts for a variety of reasons, including the impact on their child.

Courts should normally be seen as the last option unless there are more pressing welfare and safety concerns.

Even if an application is made, that does not mean that an alternative resolution cannot be found in the meantime.

It may be possible to use a specialist mediation service that assists with cases of international child abduction.

If an agreement is reached, either via mediation or in any other way, then it is always possible for these arrangements to be approved by and embodied in a court order to formalise what is agreed.

Failing to return a child to their parent

If the other parent continues to refuse to return a child from overseas, in what is commonly referred to as wrongful retention, then this may be elevated to the criminal and civil offence of child abduction.

Given the seriousness of this, if a child is not returned after an agreed holiday and this breaches an existing order or agreement, then it is important that urgent advice is obtained and a court application made to secure the child’s return.

If the retention takes place overseas, then the actions taken will depend on where they have been taken. There are various international laws, such as the 1980 Hague Convention, which deal with abduction issues.

Typically, the case can be brought to a court in England or Wales, but in some circumstances, an application may need to take place in the country where the child is being retained.

Whilst the focus of many cases may be overseas abduction, the same is true of a child wrongfully retained in England and Wales. If this is the case, the matter will normally be deal with in the court nearest to where the child usually resides and be dealt with under the Children Act.

How to get a child returned

If you find yourself in this situation and initial discussions do not lead to the return of the child, your first step should be to consult a solicitor with experience of children matters, in particular national or international abduction.

They will be able to clearly explain your rights as a parent, current legal position and the steps that you can take to seek the return of your child.

When meeting with this solicitor, it is best advised that you take any agreement that is in place and the original travel plans that were discussed with the other parent or guardian.

If possible, also take along any travel documents, such as copies of passports, and any other orders or information that you feel would be beneficial.

Quite often, legal advice will need to be taken in the country where the child is being retained. This is why it can be quite useful to work with a law firm that is part of an existing international legal network, such as Mackrell International.

If the other country outside England and Wales is one of the 100 connected to the Hague Convention, then the Central Authority that co-ordinates cross border matters may need to be involved.

From the beginning of the dispute, it is important to record communications with the other parent and where possible keep regular contact with them.

Try to understand where the child is being retained and find out about their care and any other plans for schooling or travel. This will help the courts to both locate and assist with the necessary proceedings.

If the other parent or guardian refuses to tell you where they are, however, there is other legal action that can be taken, that may help to locate the child.

How soon can I get my child returned?

The primary concern for any parent whose child has been wrongfully retained is how soon they can be returned.

The Courts take these matters seriously and will usually treat cases with urgency in comparison to normal parental disputes.

Normally within a matter of days of an application being made, the courts will make contact, but the length of proceedings can vary from a few weeks to over a year.

For the best interests of the children, try to maintain contact with them during this process and provide reassurance about the situation.

If you would like advice on national and international child abduction issues, please contact Alison Green, Head of the Family & Relationship Team by calling 0207 420 4193 or emailing alison.green@mackrell.com