What to do if your ex-partner doesn’t return your child after a holiday or contact

22 August 2024

6 min read

Family, Children & Relationships, Brabners Personal

As the summer draws to a close, many children will be returning home after spending time with parents or extended family over the school holidays, ready to start the new school year. This is often a peak time for disputes to reach their climax over where — and with which parent — a child lives. Sometimes, children might not be returned to the other parent while a disagreement is aired.

Here, our Head of Family Cara Nuttall offers her expert guidance to parents whose ex-partner hasn’t returned their child after a holiday or contact.

Does my ex-partner have to return the children to me?

Where both parents (or other significant adults in the child’s life) share parental responsibility, neither is entitled to make significant decisions — such as where a child lives or attends school — unilaterally.

If an agreement can’t be reached, the court can adjudicate. Simply imposing one’s own views without prior discussion and arrangement is rarely seen as appropriate or in the best interests of the child. Of course, there are sometimes genuine welfare or safety reasons that mean arrangements need to change urgently and without prior arrangement. However, such circumstances are limited.

If there’s already a court order in place, a failure to abide by the arrangements set out in the order is likely to mean that the person retaining the child is in breach of the order. This means that various sanctions can be imposed, as well as the terms of the order being enforced.

If the parent who is refusing to return the child in accordance with an order believes that there are genuine reasons why it wouldn’t be in the child’s interests to return them to the other parent, the onus is usually on them to make an application to the court to vary the order and explain those reasons.

Child abduction and relocation

Where a child has been taken abroad and isn’t returned, a failure to return the child (often referred to as unilateral or unlawful retention) can be classed as child abduction. This can constitute both a criminal and civil offence.

If a child isn’t returned after a holiday or contact — if this is in breach of an agreement or court order and the situation can’t be resolved by agreement — it’ll usually be necessary to make an urgent court application to secure the child’s return.

If the abduction or retention has taken place within England and Wales, the application will usually be dealt with under the Children Act and in the court local to where the child usually lives.

What can I do if my ex-partner has retained my child abroad?

If the retention has taken place internationally, the situation will usually be dealt with by special laws designed for this situation. Which law applies — and what the procedure is — will depend on where the child usually lives and where they’ve been retained.

The most significant law dealing with parental retention and abduction is the 1980 Hague Convention, which covers around 100 countries worldwide. This provides a an expedited framework for the retention to be addressed by the court and a decision to be made as to whether, when and under what conditions a child should be returned.

Depending on the circumstances, the proceedings could take place in England or Wales. However, they may well take place in the country where the child has been retained.

How can I get my child returned?

The first step will often be to obtain legal advice from a solicitor who specialises in child abduction (whether domestic or international). Not all family solicitors undertake this work and it’s important to consult someone who does. They’ll be able to explain your legal position and options.

Depending on the circumstances, you may well also need legal advice and/or representation in the country where the child has been retained. Your local solicitor will usually be able to help you make contact with an appropriate expert in the other country. Depending on the circumstances, the Central Authority may also be involved. Each country that’s a party to the Hague Convention has a Central Authority that administrates the arrangements for cross-border proceedings.

Where possible, it’s important to maintain communication with the other parent and the children, and gather as much information as possible about their whereabouts. This will assist when any court proceedings are issued. If you don’t know exactly where the children are, additional orders may be made by the court to help locate them. You’ll often need to provide full information about the travel plans and any agreement that was in place, along with any orders that are already in place and copies of travel documents (such as passports) if you have them. A specialist solicitor will be able to advise you about what’s needed to ensure that any application is fully prepared.

Are there alternatives to court proceedings?

Court proceedings are always a last resort but are often needed in abduction and retention cases. However, even if an application is made, it doesn’t mean that discussions can’t continue as to whether a resolution can be reached by agreement.

There are specialist mediation services that focus on international cases and issues of international abduction and retention. Reunite can support such discussions and help parents to explore all the options, either alongside or instead of court proceedings.

If an agreement can be reached, this can often be converted into a court order to give everyone security moving forward. Organisations like Reunite also offer information and support for parents involved in abduction and retention proceedings.

How long do court proceedings take?

Where a child has been unilaterally taken or retained by a parent, any application will usually be treated as urgent and dealt with more quickly than ‘standard’ children disputes. While it’s typical to be in court within a matter of days of the application being made, this can vary significantly depending on the circumstances. How long the proceedings take to conclude can also vary from a few weeks to over a year.