What to do if your child isn’t returned after contact
What starts as an arrangement to support your child’s relationship with the other parent can suddenly turn into a very difficult situation when your child is not returned home after spending time with the other parent. Your child is missing school, their routine is disrupted, and you may not know where they are or when you will see them.
Unfortunately, this is something I see all too often in practice. Parents can be left feeling powerless, caught between the police saying it’s a “civil matter” and to make an urgent application to court and social services advising them to seek legal advice.
Fortunately, you are not without options. There are urgent steps you can take through the Family Court to secure your child’s safe return and to prevent the same situation happening again.
Understanding Parental Responsibility
The first step is to understand parental responsibility (PR)
PR is defined in section 3(1) of the Children Act 1889 as:
“all rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”
In practice, this means the right to make decisions about a child’s upbringing such as where they live, their education, medical care and so on.
- A mother automatically has PR
- The father has PR if he is married to the mother at the time of the child’s birth, or if he is named on the birth certificate.
- A father can also acquire PR by entering into a PR agreement with the mother or by obtaining a court order.
If you are the only parent with PR, the other parent has no legal right to keep your child against your wishes. Even if both parents have PR, neither is allowed to unilaterally change the child’s living arrangements without agreement or a court order.
Is this ‘Child Abduction?’
Under the Child Abduction Act 1984, it is a criminal offence for a parent to remove a child from the UK without consent of others with PR.
But within England and Wales, if both parents have PR, keeping a child after contact is not automatically a criminal offence.
That said, if a parent without PR refuses to return a child, they have no lawful authority to retain them. You need to seek urgent legal advice.
Legal Remedies
The main applications are under section 8 of the Children Act 1989:
- Child Arrangements Order (lives with): this order confirms that your child lives with you. It secures your legal position going forward and provides clarity for schools, medical professional and anyone else involved in your child’s care.
- Prohibited Steps Order (PSO): this prevents the other parent from removing your child from your care of keeping them after contact in the future.
How to apply
You apply on Form C100. This can be completed online or on paper.
If there are allegations of harm or domestic abuse, you should also complete Form C1A.
If you need to keep your address confidential, use Form C8.
The application feel is £263, but you may be eligible for help with fees if you are on a low income or benefits.
Seeking an urgent or without notice hearing
In cases where a child is being wrongfully retained, you can ask the court to hear your application urgently.
- Urgent application: you can ask for your case to be listed quickly, sometimes the same day.
- Without notice (ex-parte) application: in very serious cases, you can ask the court to make an order without the other parent being told in advance. You would do this in cases where:
- Giving notice would defeat the purpose of the application (for example, the child might be moved)
- The case is exceptionally urgent
- Notice would put the child at risk of harm
In your application and supporting statement, you must explain clearly why urgency of without notice is justified.
The legal test the court will apply
The court’s guiding principle is always the welfare of the child (section 1 Children Act 1989), which is their paramount concern.
The Welfare checklist (s.1(3)) - the court must consider:
- The child’s wishes and feelings (in light of their age and understanding)
- Their physical, emotional and educational needs
- The likely effect of a change in circumstances
- Their age, sex, background and any other relevant circumstances
- Any harm they have suffered or may suffer
- How capable each parent is of meeting their needs
- The range of powers available to the court
In practice, if a child as been retained after agreed contact, the court is likely to see this as being harmful and disruptive to the child. The court is very likely to order an immediate return of the child to their primary carer, unless there is an immediate risk of to the child with the primary carer. Moving forward, the court is also likely to suggest future contact being managed in a more structured way or restrict contact if the parent cannot be trusted to return the child.
Avneet Panesar is an Associate Solicitor at ITN Solicitors specialising in all areas of children law, including urgent High Court and Family Court applications where a child has not been returned after contact, disputes over residence and contact, allegations of harm, and applications to prevent the wrongful removal of children. She regularly represents parents in urgent proceedings to secure a child’s safe return and to put protective measures in place for the future. She can be contacted here