What Happens If My Ex Keeps the Children Without My Consent?

The thought of your ex partner taking your children is the worst nightmare of many parents, and so if it happens, understandably it is a very emotional and stressful time. Many people turn to the police for help to return their children, but how much the police can help is very dependent upon your personal situation. If both parents have Parental Responsibility and one parent is keeping the children against the other's wishes, the police CANNOT help, even if the children do not normally live with them. However, if the parent does not have Parental Responsibility, the police will be able to intervene.

So what is Parental Responsibility?

The Children Act 1989 defines 'Parental Responsibility' as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child'. In plain English, this means that you have responsibility to:

• house the child
• protect and maintain the child
• make decisions about their education
• name the child
• consent to any medical treatment for the child

Mothers automatically have Parental Responsibility as they are listed on the child's birth certificate. A father will automatically have Parental Responsibility if he was married to the mother at the time of the birth or was listed on the birth certificate. Alternatively, both parents can sign a Parental Responsibility Agreement and register it with the courts, or more commonly, a father can apply to the courts for Parental Responsibility.

To apply to the courts, you will need to fill in form C1 found at Gov.UK - Forms and Guidance. A court fee of £232 is also payable though you may be able to get assistance with this if you receive benefits or have a low income.

But what if both parents have Parental Responsibility?

If both parents have Parental Responsibility then the police cannot intervene to take the child off one parent and give them to the other; the police cannot choose between parents, that is the remit of the courts.

In this situation, if you are concerned about being able to see the children, or, if you think that the children should live with you, you can apply for a Child Arrangement Order.

Note: You may have heard about Contact Orders or Residence Orders. A Child Arrangement Order replaces these older orders but those with Contact or Residence Orders need not re-apply. Also confusingly often those in practice will still refer to (for example) obtaining a Residence Order when applying for a Child Arrangement Order.]

What is a Child Arrangement Order?

This court order determines where your child lives, which relatives they have contact with, and what type of contact (e.g. in person, phone calls, or letters). Anyone with Parental Responsibility can apply for an Order.

To apply to the courts, you will need to fill in form C100 found at Gov.UK - Forms and Guidance. A court fee of £232 is also payable though you may be able to get assistance with this if you receive benefits or have a low income.

Ordinarily, the court will give notice of the hearing to both parties so that they can attend and give their side of the story. However if you think that your child / children may be in danger, then you may be able to apply for an emergency without notice hearing which will be much quicker than a full "with notice hearing". However be aware that this will only be a temporary solution and that any without notice hearing will be followed shortly after by a full "with notice" hearing in which the court order may be changed. If you are considering this option, seek professional advice or contact your local Citizens Advice Bureau for some free assistance.

If you can show that your former partner is not able or appropriate to look after your child / children, you may be able to get an order stating that the children should live with you. However you will need to evidence this.

Below are easy ways to obtain this evidence:

• Take photographs of the condition of your children when you see them (e.g. unwashed / dirty clothes / dirty nappy)
• Video or photograph your interaction with your former partner when going to collect your children, including any condition of their house as you can see it from areas into which you are invited / the doorway. However remember that you must not trespass into the property.
• Take a witness with you when you go to try to collect the children (e.g. a family friend or if possible an independent person such as a local church minister).

Note that the courts are very unlikely to not award at least contact to a parent, even if they are inappropriate to look after a child. However this contact may be indirect, such as by letter, or supervised at a contact centre.

Remember that whilst the police cannot take a child away from a parent with Parental Responsibility, they are able to intervene and remove a child if there is a real risk to life. If you are concerned about a real and immediate threat to your child's safety, speak to your local police force and social services.

If you are unsure about your rights, speak to your local Citizens Advice Bureau who will be able to provide you with free assistance. The courts may be able to help, but this can be a lengthy process and you will need to evidence any concerns. It is therefore important to know your options before seeking a court order.

The Next Step

Now that you have read through the advice above, you might want to put it into practice. Our Rights Checker lets you check what legal rights you have as a separated father. Takes 2 minutes. Try it now →