What Do I Do If My Children Aren’t Returned After Contact During Lockdown?

The government guidelines allow children to travel between houses for contact if their parents are separated.

This means that contact can still take place. If a parent doesn’t return the children after contact then it can be a very frightening time but made worse now that we are in lockdown.

My former partner hasn’t returned my children after contact – what do I do?

The first thing to do is to contact the police who can at least carry out a safe and well check to ensure that the children are alright. They will not however, very often return the children to you, unless they do not believe that they are safe with that parent, even if you have a court order, because this is a civil matter. They may however, manage to persuade the other parent to return the children to you.

What do I do if the police can’t help?

The courts are still open and this type of matter will be seen as a priority but you need to ensure that you follow the correct procedure. Whether or not you have a court order for the children to live with you, it is necessary to make an urgent application:

• for a peremptory return order, in other words an order the children to be returned to you immediately;
• for a prohibited steps order for the other parent not to remove the children from your care, except for agreed contact; and
• for a penal notice to be attached to the order. A penal notice means that if the parent breaches the order again by not returning the children to you after contact, then they will be in contempt of court and you can apply to the court for them to be fined, have their assets seized or even sent to prison.
• If you do not have a court order then you also need to apply for a child arrangements order for the children to live with you.

It is usually necessary for the application to be made without notice to the other party. This is due to the urgency – the court hearing may take place the same day – and also in case the other parent may disappear with the children if they are aware of the application.

How do the courts decide whether to grant me a return order?

The court will usually want to maintain the status quo which means that they will want to keep to the terms of the original order pending a full investigation being carried out. So, in most cases the court will make the order for the children to be returned to you. However, the court’s primary consideration has to be the welfare of the children. They must consider any risk of harm to the children, either from staying with the other parent or by being returned to you – there may be a good reason why the other parent has kept the children. The court will consider matters such as the disruption to the children’s routine, for instance, if the other parent lives some distance away so the children will not be able to go to their usual school, in addition to serious risks of physical or emotional harm. The more serious the risk of harm by the other parent the more likely it is that the court will order the return of the children at a hearing that is without notice to the other parent.

The case will then be listed for a hearing at which the other parent will be able to attend. If an order for the children to be returned to you is not made at the first hearing then this second hearing will usually be listed within a few days.

How quickly do I need to make the court application?

The application needs to be made very urgently, preferably within 24 hours of the children being kept after contact. Any delay in making the application may mean that the court will not make the peremptory return order and leave the children with the other parent pending resolution of the application, particularly if there is no “living with “ order already in place. This could mean that the status quo changes so that the other parent then becomes the primary carer. Speed is very much of the essence with these applications.

For more information, please contact our Family Law team on freephone 0800 011 6666 or via email at legal@timms-law.com.

May 2020
Alison Wilding