When an ex-partner refuses to return a child from abroad

The summer holidays are over, but for some parents the end of the break has brought a new and worrying problem. Their child has not been returned from a trip overseas.

This situation can be extremely distressing for both parent and child and it is important to understand your legal rights and the steps that can be taken.

Parental responsibility and court orders

When parents or guardians have shared parental responsibility, neither can make major decisions about a child, such as where they live or go to school, without agreement from the other.

Sometimes, an agreement can be reached informally. However, this is not always the case and if parents or guardians want to avoid court, mediation can provide a quicker and less stressful alternative.

Specialist mediators are also available for international child abduction cases and any agreement reached can later be formalised into a court order.

If disagreements cannot be resolved informally or through mediation, the courts may be the only option to create or enforce an order setting out where a child should live.

In any court proceedings, the courts will listen to both parties, but the interests of the child will come first, unless there is a genuine safety concern that justifies the change.

If a court order is already in place, failing to return a child as agreed could put a parent in breach of that order, which may lead to sanctions.

When refusal becomes child abduction

Where a child is not returned after an agreed holiday or trip, this may be classed as “unlawful retention” and can amount to child abduction.

The next steps depend on where the child is being kept, as follows:

• If they are in a country signed up to the Hague Convention, the courts there may work with the English courts to secure their return.
• If they are held in a country outside the Convention, local legal advice will usually be required alongside proceedings in England or Wales.
• If a child is unlawfully kept in England or Wales these cases will be dealt with under the Children Act.

What to do next

No one wants to find themselves in this situation, but it does happen to many parents every year.

Swift action is key to resolving child abduction matters and you should begin by seeking urgent legal advice from a solicitor experienced in child abduction cases.

When meeting with them, you should bring along any agreements, travel documents, court orders and other relevant information to your first meeting.

Keep a record of all communications with your ex-partner and, where possible, maintain contact with your child to reassure them that the matter is being resolved in their interest.

How quickly can a child be returned?

The courts treat these cases as urgent. Applications are usually processed within days, but the length of proceedings can vary from a few weeks to over a year depending on the circumstances.

Throughout the process, the focus remains on the child’s welfare and the courts aim to resolve matters as quickly and sensitively as possible.

If you would like to know more about our expertise in children matters, please get in touch with our family law team.