What do to when the ex won’t hand the children over

As with many questions relating to family law this is another subject surrounded by myths. Swallow these myths uncritically and you could seriously damage your case.

So it’s important to know what your options are and know the truth.

Calling the police won’t help – even if you have a residence order

It seems to be the reason that many parents actively seek a residence order (or more correctly these days an order that says the children lives with them) – because they think they can ring 999 and a car with blue flashing lights will race to the children and return them.

Pro-tip: They won’t.

At the most the police will visit where your children are and do a welfare check. That said there are two ways the police CAN remove children…

  1. The first is an Emergency Protection Order (a s34 order – under the Family Law Act). Note: You’re unlikely to get one of these just because your ex has retained the children. Making an application of this type without good reason is a spectacularly bad idea – and your ex hanging onto the children isn’t one of them.
  2. The police have `reasonable cause to believe that a child would otherwise be likely to suffer significant harm’ (under Section 24 of the Children Act). Again…phoning the police and hoping they return them to you won’t meet this criteria. And again it’ll likely cause more problems that it will solve. The police will most likely tell you that the most they can do and you need to speak to your solicitor and/or should consider an application to the courts.

This is because where children spend their time is a civil matter – and outside the remit of the police.

It’s worth noting that having a residence order means nothing when it comes to the above. We’re constantly surprised by the number of people who seem to think this is the case however and it seems to be a BIG motivation for many people applying for residence (or that the children `live with them’ as orders have it these days). We’re not sure why so many people seem to want a residence order but we have our suspicions

So what to do?

Well…if it’s a weekend and the courts are shut…not a lot. Like many other situations faced by this in the family court arena the answer is `It depends’. Factors include (but are not limited to):

  • It having happened before and is an established pattern.
  • You’ve been told that the children won’t be permitted to see you without an order.
  • There is a good/genuine reason for this happening.
  • What has happened before.

Your potential responses include:

  • Doing nothing.
  • Sending a letter/email saying you are disappointed the children have been denied time, etc.
  • Making an application to the court for enforcement.

The moral of this story…

…is…it depends’. The hard part isn’t knowing the law (although it helps), it isn’t knowing what your rights are. It’s about judging what is going to help you achieve your goals and what isn’t. Losing a `battle’ isn’t losing the war.

Keep your eyes on the ball and don’t get distracted.

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