By Family Law Solicitor Dominic Lee
Cases from the higher Courts make it clear that a child should only be retained after contact if there are exceptional circumstances and some form of emergency situation which justifies the child not being returned to the parent with whom they normally live. I have certainly had cases where this type of action was right and proper, for example, where one parent’s mental health deteriorated to the point where they attempted to take their life and the child’s father therefore kept the child with him. Other examples may be where a child has come to contact and it is clear that they have suffered some form of harm whilst in the care of the parent they live with, and it would place them at significant risk of further harm if they were to be returned to that parent. In those circumstances, it would be appropriate to keep the child, but an urgent application should be made to the Court to seek an interim change of residence supported by a Witness Statement setting out clearly why that action has been taken.
If there are not exceptional circumstances or some form of emergency situation then retaining a child after contact is not the proper course of action. If you believe it is in your child’s best interests to live with you and you cannot resolve this with the other parent then an application to the Court should be made so that the proper process can be followed.
But what should you do if you find yourself in the reverse situation - you send your child for contact with the other parent and they then refuse to return the child to you? This is not an uncommon scenario, particularly with the pandemic being used in some circumstances to justify this action. If safe to do so you should first of all contact the other parent and request the child’s immediate return. If this falls on deaf ears (and the stalemate cannot be broken by a third party, for example, a mutual friend acting as mediator) then you should seek urgent legal advice. Guidance from the Courts is that an urgent application, without notice to the other parent, should normally be made within 24 to 48 hours seeking an Order for the immediate return of the child. The Courts should deal with these cases as a matter of urgency, though in the current pandemic the whole Court system is under a lot of strain. Provided there is no risk of harm to the child in returning to the resident parent’s care, then the Courts should generally make that order returning the situation to the status quo.
If you find yourself in either of these situations you should seek legal advice immediately. To book a face to face, video or telephone appointment call the family team now on 0800 542 4245