Eri Horrocks discusses a practical guide to emergency private children cases in The Review

This article was originally published in Resolution and can be accessed here. The article is a review of a Resolution workshop looking at emergency private children cases where one partner unilaterally removes the children.

My partner has taken the kids what can I do? A practical guide in emergency private children cases

It’s a Friday at 5pm, you’re in the office (pre-pandemic), the phone rings and a client says their kids have been taken.

This was the scene set by Simon Craddock (Brethertons) and Laura Morley (4PB) to start off their workshop looking at emergency private children cases where one partner unilaterally removes the children.

As family lawyers, I am sure that we will all have come across this situation in the course of our work. We need to be equipped to face such circumstances, and this workshop focused on the practical steps that should be taken, through the lens of a number of worked through scenarios, covering the taking of a child in the following circumstances:

• By a parent in the local area
• By a parent where there is an existing court order
• To Scotland/Northern Ireland
• Where there are welfare concerns
• By a parent to an unknown location
• To another part of England & Wales
• To a Hague/non-Hague country

For each scenario, we were guided through the steps to be taken which (depending on the facts of the case) could include sending a letter before action, looking at the client’s legal aid eligibility, considering what application(s) should be made, whether the application should be made without notice or on short notice, and where to issue proceedings. In many cases there is more than one possible course of action or application to be made, and the various options were clearly set out by Simon and Laura, along with an explanation of how you would go about choosing what to do. There was also a helpful run through of the relevant legislation and case law covering the usual section 8 orders, as well as those applications dealing specifically with abduction, such as return orders, port alerts, and Tipstaff passport and location orders.

We were cautioned that there are some cases where the court might make a costs order against a legal representative if they acted improperly, unreasonably or negligently. This might be because a without notice application was made inappropriately or because case management directions were not complied with. A word of warning and a reminder to us all that costs orders, including wasted costs orders, can be made within Children Act proceedings.

Interspersed throughout were some of Simon and Laura’s anecdotal experiences of these cases, as well as their tips. Some examples include:

• Lining up a Scottish lawyer (in an intra-UK case) to avoid delay if an enforcement application becomes necessary
• If abduction is feared to be imminent, you can (in certain circumstances) apply to the police directly for a port alert without the need for a court order
• You can try writing to the other parent’s country’s Embassy, High Commission or Consulate to ask them not to issue a passport for the child (if the child does not already have one)

The detailed notes provided with the workshop set out a comprehensive summary of the law and procedure, and also include helpful links to various resources as well as key phone numbers that you might need. They make a very handy guide to have saved or printed out for easy access!