The emotional stresses and strains and in some cases financial consequences of the Covid 19 pandemic have tipped an unprecedented number of married couples into divorce.  The substantial rise in divorce inevitably involves the minor children of a marriage.  When arrangements relating to the children of a marriage are being settled this often leads to the most contentious and upsetting part of the whole procedure.  There are a number of issues that are considered by the courts and all decisions are made with the best interests of the child or children in mind often regardless of the wishes of the parents.  The welfare and well-being of children caught up in a divorce is the overriding consideration and paramount in the eyes of the court.

In relationship break-up and divorce between nationals of different countries, it is increasingly common for minor children of the marriage to be taken to one parent's home country to be permanently domiciled there and not returned.  The non-custodial parent then faces a legal battle that is often lengthy and costly, to re-establish parental contact with their child or children. If you believe a situation could arise involving parental abduction, there are legal steps you can take to prevent your former spouse from being able to remove your child or children from their present domicile and relocating to their country of origin with no intention of returning.  Giambrone & Partners' lawyers in the family law team can initiate a Prohibited Steps Order under section 8 of the Children Act 1998 through the courts.  A Prohibited Steps Order is one of three provisions relating to child arrangements orders and is designed to prevent a child from being removed from the custodial parent and taken abroad without the express permission of the court.

A Prohibited Steps Order applies to one single particular issue related to children of 16 years and under. Such an Order is only granted to ensure that a parent, even a parent with parental responsibilities, cannot take the steps referred to in the Order, usually relating to the removal of a minor child or children to another country, without permission of the court.  There are several other issues that can be controlled by the court with a Prohibited Steps Order that would materially change the life and living conditions of a minor child, for example:

  • Removing a child from the custody of a parent or other approved caregiver;
  • Preventing a child from being moved to another location within the United Kingdom;
  • Preventing a child from contact with particular people
  • Removing a child from their school;
  • Changing a child's name or surname;
  • Making decisions in respect of a child's medical treatment, etc.

The court will not make a Prohibited Steps Order without a considerable amount of investigation into the child's situation to ensure that such an Order is completely necessary and in the child's best interests.  The only time a Prohibitive Steps Order is made without a mandatory welfare check is in the case of an emergency situation where a child may be imminently forcibly removed to another country.

In the ordinary course of events once an application for a Prohibited Steps Order is made an officer from Children and Family Court Advisory and Support Service (CAFCASS) is appointed whose role is to investigate the possibility of an amicable agreement can be made between the parents and avoid the need for court intervention.  After a thorough investigation, if the CAFCASS officer believes that it is not possible for an amicable agreement with regard to the child's domicile, further investigations will be carried out by CARCASS who will then submit a report to the court with their recommendations.

The court will consider the report and if the court believes that there is comprehensive evidence that a Prohibitive Steps Order is in the child's best interests a Prohibitive Steps Order will be granted.

Our experienced family lawyers point out that any contraventions of a Prohibitive Steps Order by the former spouse or any person acting as the agent of the former spouse is a criminal offence and punishable by the imposition of a period of unpaid work, an Enforcement Order or a Suspended Enforcement Order or imprisonment.  Our expert lawyers can help you to take action if you suspect that your former spouse is planning to move back to their home country and wishes to take the child or children of the marriage with them to live permanently outside the UK.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.