The breakdown of a relationship is far from a pleasant process for anyone to have to go through. Even if the initial split was amicable, the process of dividing up a life together often involves lengthy negotiations, which can quickly turn sour, especially when children are involved. However, the unfortunate reality is that sometimes children are stuck in the middle of the breakup and left vulnerable.
We have all heard horror stories of one parent not returning the child at an agreed time flaring up panic for the other, or even worse, one parent taking the child with them overseas without the other’s knowledge. Unfortunately, figures reported by the police of England and Wales show that there were 569 reported cases of child abduction in 2013/14, an increase of 11% from the previous year.
Thankfully, if you find yourself in this terrifying situation, there are legal steps you can take to minimise or mitigate the situation. If you fear that the other parent will take the children away from you without permission, you can apply to the court for a ‘Prohibited Steps Order (PSO)’ under section 8 of the Children Act (the Act) 1989.
What is a ‘Prohibited Steps Order’ (PSO)?
Both parents have parental responsibilities for a child; this refers to the power and authority a parent holds to provide long-term care. Since both parents retain parental responsibilities, even if the relationship between them breaks down, any important decisions about the child will have to be made in consultation. An issue arises when the parents cannot reach an agreement that suits both parties, and it is common to apply for a prohibited steps order if this occurs.
The Act defines a ‘Prohibited Steps Order’ as “an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court.” Simply, this means that the order prevents one parent from taking action in relation to his/her parental responsibilities. In relation to the concern that one parent will take away the child without the other’s permission, a prohibited steps order will prevent the child from being removed from the care and control of a parent or from the jurisdiction of England and Wales.
How do I obtain a PSO?
If you exercise parental responsibilities, you have the right to make an application for a PSO. This is normally the mother or the father, but it can include a stepparent or a guardian if you can prove that you exercise parental responsibilities for the child in question.
However, before a PSO application can be made, it is now necessary for the parties in dispute to attend a family mediation information and assessment meeting. If no resolution from this mediation, or if the mediation process is not suitable (for example due to domestic violence), you may then apply for a PSO.
A PSO can be applied for using court form C100 and will be granted under section 8 of the Children Act 1989. While an application can be made without notice to the respondent on an emergency basis, the courts will prefer to notify the respondent where possible.
Upon consideration, if the court is of the belief that the objective of the application can be achieved through a residence or contact order then this will be preferred over the PSO. If the court believes that a PSO is appropriate, then a first hearing dispute resolution appointment will take place to determine the issues and provide direction as to how the case should proceed. If the case is not adjourned after this process, then a final hearing may take place.
In considering whether a PSO will be granted, under section 1(3) of the Children Act 1989 the court will take into account:
- The wishes and feelings of the child
- The child’s physical, emotional and educational needs
- The likely effect on the child of any changes in circumstance
- The child’s age, sex, background and any other characteristics which the court considers relevant
- Any harm the child has suffered or is at risk of suffering
- The capabilities of each parent, and any other person in relation to whom the court considers the question to be relevant in meeting their needs
- The powers available to the court
In light of the above, in cases involving relocation or possible abduction of the child the court will also consider:
- How practical and reasonable the relocation is
- In situations where abduction is feared, the serious likelihood that the other party will remove the child
- The effect on the parent and his/her relationship with the child should the relocation take place.
- How genuine the need for relocation is to rule out any ulterior motives to attempts to deny the other parent contact with the child
The weight given to each of these factors will vary case-by-case to give effect to the best interests to the child. For example, in a recent 2013 Court of Appeal case Re A (Prohibited Steps Order), the court overturned the initial court decision allowing the mother to take the child to Kenya on holiday with some safeguards, as the risk of the mother failing to return the child was small. The Court of Appeal’s reason for allowing the appeal was because the overriding consideration was the welfare of the child, which meant that any risk of abduction had to be outweighed by the benefits of the holiday. In this case, a PSO was considered necessary, as the consequence of any potential breach far outweighed the benefits of the holiday when considering the welfare and best interests of the child.
The effects of a PSO
Remedies under a PSO allows for special orders preventing the child from being removed from the UK where there is a real threat that the child will be removed in breach of the order. This may involve forfeiting the child’s passport or notifying the passport agency of the threat. In more extreme cases, an all ports warning may take place to prevent the child from leaving the country.
If there is a breach of a PSO and your child has been taken elsewhere, an application for a search and find order can be made to bring the child back. The court can make orders to invoke help from the police to obtain information about the whereabouts of the child or to trace the child through searches of airports. If the child has been taken outside the UK, there is currently an agreement between 45 different countries ensuring assistance through its authorities to have the child returned to the UK. Any breaches of a PSO could result in prosecution.
If you have any concerns about the safety of your child, our Family Law team at Saracens Solicitors have specialised experience and knowledge to help you through the process. Please contact us on 020 3588 3500for a consultation in complete confidence.
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