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Five top tips on preventing the non-return of children after holidays

We outline the key issues for separated parents to consider when planning a move abroad or relocating with children.

As we enter the school summer holidays, many families will soon be travelling abroad to visit and reconnect with family and friends. Some children will be taken to visit family in foreign countries. In some cases, parents may consider staying there, rather than returning home.

Alternatively, there will be some parents feeling anxious when their child is going on holiday with their other parent. If that parent may not be from the UK originally and always expressed a wish that they would like to return to their homeland one day, a niggling concern raises its head: what if they don’t come back and decide to stay?

Whether you are the parent taking your child on holiday and the thought of staying indefinitely is tempting, or you are the parent at home anxiously waiting for your child to return to the UK, here are some top tips to consider:

1. Be aware of the law and what is permitted

By way of a reminder, if both parents have parental responsibility and there is no Child Arrangements Order (CAO) in place, then neither parent can take the child on holiday out of the UK without the written consent of the other parent or any other party with parental responsibility.

If there is a CAO in place and that order provides for the child to ‘live with’ one or both parents, then that parent with the benefit of the ‘lives with’ order can take the child out of the UK for up to 28 days without the written consent of the other parent. It is always recommended that arrangements are agreed in advance and in the absence of this being agreed it should not interfere with the other parent’s time with the child.

If there are no emergency or exceptional circumstances, the child should be returned in accordance with the agreement that was made between the parents.

2. Always keep the other parent informed

Do not unilaterally make a decision to stay in another country and simply fail to return. The other parent needs to be informed and in agreement, or you will need a court order to confirm that you can relocate with your child. Failure to do so can result in child abduction allegations and proceedings which could jeopardise any genuine desire to relocate.

3. Be realistic

Have a sensible discussion with the other parent as to what your intentions are, how practical it is to stay and seriously consider whether it is in the best interests of your child. How would the proposed move impact their relationship with the other parent? How will future contact be facilitated? What would the transition be like for the child? Is it feasible?

4. Have a strategy

If re-locating is a serious consideration, return to the UK and approach it sensibly. Have discussions with the other parent, and if the other parent does not agree/you feel that they are unreasonably withholding their consent, an application to the court would need to be made.

If you are approached by the other parent and asked to agree to a relocation, give it careful consideration.

In both situations, take legal advice from experts.

If court proceedings look likely, try and explore avenues such as family mediation. This would be more cost effective and is a practical forum to discuss your issues and concerns and hopefully reach an agreement that is in your child’s best interests.

5. Act urgently

If your child has not returned to the UK when you expected them to and you do not know when they will return, act urgently! Try and make contact with the other parent and ask for their immediate return or try and make contact through a third party such as family and friends. If this fails, seek urgent legal advice as an application to court for their return can be made. 

Contact our child law solicitors for further guidance on relocating with children or the non-return of children.

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