While you may not be successful, it is vital that you do everything you can to prevent the abduction of your children if you believe them to be at risk.
First of all, get a Child Abduction Prevention Guide from the charity Reunite.
Their Guide will encourage you to put together specific information about your child, including description, photographs, fingerprints, birth certificate and any Court Order applying to the child.
You should also compile a description, with photographs if possible, of any potential abductor.
You will need three sets of this information, and must then give one set to the police and one to your solicitor if you have one, keeping the third yourself.
If you fear that removal may be the first step in an attempt to prevent contact entirely, perhaps by subsequently moving out of the jurisdiction, we would urge you to apply immediately, certainly within 24 hours, for an ex parte application for a summons. It is highly likely that your children’s other parent will remove your child sooner than you think, and the object is to prevent this. So whatever you do, do it quickly.
This advice also applies if your children have already been taken.
Contact the Court Tipstaff who will then draw up the order. You will also need a ‘Seek and Locate’ Order and a ‘Passport Delivery’ Order; they will be drawn up by the Tipstaff office and executed by them before service on the defendant abductor of your summons or with informal notice or without notice orders. Ex parte means that you appear in court before a judge without the other party being present; informal notice means that you do not complete all the usual documentation. You need to act very quickly and there is not time to do this. Don’t waste time filling out forms; go to the court and wait to see the duty judge; phone the Tipstaff in advance.
Some High Court Judges will include in a ‘Tipstaff order’ a direction that the defendant is to attend court on a particular day at the High Court, to correspond with the day specified in the ‘without notice order’ which the process server will serve. On no account must you tip off the abductor!
If you don’t have Parental Responsibility you can apply for it at the same time when you go to the court.
The order without notice will include a prohibition upon disclosing the fact of the proceedings to the defendant again to avoid tipping off. The Tipstaff will take as many details as possible from you and cooperate with the police to try and track the child down. The Tipstaff order can only be as useful as the information which you make available.
The judge will not grant the order unless you have everything prepared. You must give an undertaking that you will commence proper proceedings on the next working day. You need to have your Position Statement, clearly setting out the facts, and the summons prepared so as to inform the judge as to exactly why your case is so urgent that it cannot wait.
The order will look something like this:
UPON THE UNDERTAKING of the Plaintiff to issue the Summons annexed hereto within 24 hours
AND UPON RECEIVING the affidavit of the Plaintiff’s solicitor dated …..
And at the time of making this order UPON GIVING directions to the Tipstaff of the High Court of Justice to locate the said child and obtain the passport and travel documents of the Defendant and the said child until further direction of the Court to keep safely the documents referred to in paragraph (6) of this order
UPON HEARING Counsel for the Plaintiff the Mother being neither present nor represented;
This matter be restored before a Judge of the Family Division sitting at the Royal Courts of Justice, Strand, London WC2A 2LL on …..at 10.30 am
The Defendant shall attend the hearing provided for in paragraph (1) of this order in person as well as, if so advised, by counsel and solicitors;
The Defendant shall file an affidavit in reply to the affidavit of the Plaintiff setting forth the defence to this application on or before ......(7 days)
The Plaintiff shall have leave to file an affidavit in reply on or before (14 days?)…….
The Defendant is in the interim prohibited until further Order from removing the child from England and Wales or removing her overnight from the place where she currently resides.
The Defendant is in the interim prohibited from applying for passports and travel documents for the child or herself until further Order.
Costs in the Application.
Once you have the without-notice order and the summons you must arrange for a process server to serve them on the defendant as soon as possible.
A Seek and Locate Order is defined under Section 33 of the Family Law Act 1986 and you apply for it on Form C4, Application for an order for disclosure of a child’s whereabouts, or download it from the Ministry of Justice website. It’s very easy to fill in. Return it to the court with the appropriate fee. You will need to give your details and relationship to the child, and details of the name, sex and date of birth of your child, any identifying features, and a recent dated photograph if you have one; and the name and last known address of ‘the person believed to have actual control of child.’
Provide the names of any people or agencies (such as the Social Services) to whom the order should apply, and specify how the information should be disclosed to the Court. Finally you must state why the court does not have this information, and why you believe the person or agencies to whom the order is directed should have this information. Sign and date the form, keep a copy for your records and take it to the court office with the appropriate fee. If necessary this application will be followed by a Recovery Order for the return of the child made under Section 34 of the Family Law Act.
If you have a Residence Order (shared or sole) then under s.13(1) of the Children Act 1989 your children’s other parent may not remove your child from the UK, and this can be enforced under s.63(3) of the Magistrates Court Act 1980.
If the court refuses to issue a search order for Tipstaff and the police, you should appeal the court’s decision. Do not waste time, as every minute is vital. If there is any possibility that your children’s other parent may have abducted the child abroad, you should also contact the International Child Abductions and Contact Unit on 020 7911 7127. If the parent might have abducted the child to another UK Jurisdiction (i.e. Scotland, Northern Ireland, or the Isle of Man) ask that the search include these jurisdictions.
You must act swiftly. If the court reaches the conclusion that a new status quo has been established, and that the child has become ‘settled’ in a new place, the chances that the child will be ordered to be returned are greatly diminished.
There are other things the High Court can do in the event of a child’s abduction:
· Order a ‘Bench Warrant’ for the immediate arrest of the abductor;
· Require mobile and other telephone companies to disclose the incoming and outgoing numbers with whom there has been contact between particular dates;
· Order solicitors to disclose the whereabouts of a child who is subject to a Seek and Find Order or a child who is a ward of court or otherwise if so directed by the Court regardless of the rules of confidentiality which normally apply (see Re H 1 FLR 766);
· Order publicity;
· Invoke Family Law Act Section 33 to require disclosure where a Part 1 order, usually a Children Act 1989 order under Section 8, is sought;
· Dispense with service on any party in order to avoid tipping off the abductor;
· Order sequestration of assets if there has been a breach of an existing Court Order to produce a fighting fund;
· Order banks to disclose statements which may show from where someone has drawn or spent money or show where the abductor worked between particular dates;
· Make an order in respect of a Government department; see Practice Direction 20.7.95. For example, the Department of Work and Pensions may be ordered to disclose whether an application for social security benefits has been made;
· Order the Local Authority Housing department to disclose the address;
· Order the Health Authority to disclose the name of the GP of the abductor;
· Order the County Education Department to disclose whether the child’s name appears on a school register. Remember mothers might change a child’s surname for school but rarely the first name;
· Order a non-party to disclose to the plaintiff’s solicitor their knowledge of the whereabouts of the child. If the party served denies knowledge a subsequent order may be made requiring the non-party to attend at the High Court to be cross examined under threat of contempt for breach;
· Require information from airlines, but you need to be specific or they cannot help;
· An order to restrain tipping off is often appended to an order intended to locate the child.
Once interim residence has been ordered you will have more time to put together an application for shared residence. Fill out the C100 and C1A Forms, and provide a covering letter explaining the details you want to include, keep it to one page, and then take them to the court and ask for a date, say you’ll wait until they confirm an emergency hearing.