Marriages already under pressure have struggled to survive the challenges of lockdown. The situation has been considerably compounded for some people where the couple are nationals of different countries and one spouse is in a foreign country without the support of their family. The coronavirus crisis and the additional tensions created by the measures that have had to be taken to limit the risks of transmission, has resulted in marriage breakdown. In a number of cases separating parents, as well as those already divorced, have gone back to their country of origin and taking their children with them without leave of the other parent or permission of the court. The remaining parent is faced with the prospect of either limited sporadic access to their children or no access at all.
Where there is an acrimonious divorce one parent may seek to remove a child from the influence of the other parent and prevent or considerably limit the access to any children. However there are preventative and emergency steps that can be taken by a parent who suspects that their former spouse may be intending to return to their country of origin and will be taking the children with them without the intention of returning, by way of a prohibited steps order which may be made under section 8 of the Children Act 1989.
A prohibited steps order ensures that no steps can be taken by a parent whilst meeting their parental responsibilities for a child that is specified in the prohibited steps order by them or any other person without consent of the court. A prohibited steps order relates to a single specific issue and generally applies to children up to the age of 16 years, but in some circumstances can extend beyond that age. Annah Cheatham, an associate, based in Giambrone's family law team commented "before making a prohibited steps order application the court will consider a welfare checklist before making a decision; in the case of extremely urgent cases exceptions to this can be made." The types of issues that a prohibited steps order generally addresses and aims to obstruct are as follows:
- Removing a child from a parent or other approved caregiver;
- Taking a child out of the United Kingdom;
- Prohibiting a child being moved to another location within the United Kingdom;
- Removing a child from their school;
- Bringing a child into contact with certain people;
- Changing a child's name or surname;
- Making decisions in respect of a child's medical treatment, etc.
Once an application for a prohibited steps order has been made a Children and Family Court Advisory and Support Service (CAFCASS) officer will be appointed to determine whether an agreement between the parties can be achieved, which is always the court's preferred route. If no agreement can be reached the court may ask CAFCASS to investigate further and prepare a report to the Court with their recommendations.
The court, when considering an application for a prohibited steps order, will only have regard to the child's best interests, which will be paramount; it will have to be satisfied that it would be better for the child to make the order than not to do so.
If a parent or another person disregards a prohibited steps order they may have committed an offence against the Child Abduction Act 1984 and there are provisions in the Family Law Act 1986 to assist in enforcing prohibited steps orders.
At all times the best interests of the child is the major consideration for the court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.