Separation can be difficult for all families, but often particularly so for families where children are involved and where there is an international dimension. Perhaps one parent has settled in Scotland solely for the purposes of the relationship and when that relationship ends, they may prefer to return to their “home”, often where their own family are, who can give them emotional and practical support.

Can one parent choose to take the children away from Scotland, and away from the other parent? 

The answer is no. Where children live and are settled in Scotland (known as “habitually resident”) then they cannot be removed from the UK without the consent of both parents (if they both have parental rights and responsibilities) or, in the absence of such consent a court order permitting removal.

What can you do if you suspect your ex is going to remove the children from the UK without your permission?

This is a common concern for parents, especially in situations where the breakdown of the relationship is acrimonious. There can often be some warning signs, such as more talk about the foreign country, the parent resigning from their job, or money being transferred, but sometimes there’s just a “gut feeling”.

If there is a risk that the children may be removed from the UK without your consent then you can raise a court action seeking interdicts preventing the children’s removal. These interdicts can be obtained quickly from a Court by seeking an urgent hearing before a Sheriff or Judge, and orders can be sought within a few hours of taking instructions. As well as an interdict preventing the removal of the children from the UK, it is also possible to seek an order to recover the children’s passports or an order for the children to be delivered to your care if that is necessary.

Once an interdict is granted by the Court then it is possible to put in place a “Port Stop Order” which is an alert at all exit and entry points to the UK to the potential for the children being abducted. The children’s names and photographs will be put on a Child Abduction Warning List and it is anticipated that should the children be passing through an exit point, such as an airport, where checks are made, the children’s removal will be flagged to the authorities. A Port Stop Order is not foolproof as there are not always compulsory checks in leaving the UK, but it is designed as an additional protective measure.

How quickly can this all happen?

Pretty quickly. It is possible for orders to be granted by a court on the same day the application is made and from there the orders can be served on the other parent and a Port Stop Order put in place immediately thereafter. When there is an imminent risk of foreign travel, time can be of the essence.

What happens if your children are removed before you could stop it from happening?

Sometimes there is no warning about the removal of a child and a parent only finds out after it has already occurred. In these circumstances, there may be a remedy offered by the 1980 Hague Convention on Civil Aspects of International Child Abduction. This is an international treaty to which the UK is a signatory. The aim of this treaty is to return children to the country in which they are habitually resident as swiftly as possible. An application under this Hague Convention must be made in the country to which the children have been taken and these cases should be dealt with quickly.

The assessment is basically about whether there has been a wrongful removal of a child/children (or wrongful retention of a child/children in circumstances such as where there has been consent for a holiday but the children are not returned at the end of it). There are few defences to an application of this nature. Not all countries are signatories to this Convention and an application can only be made for the child/children’s return where the country to which they have been taken is a signatory. Each country implements the Convention in a slightly different way and therefore it is very important to seek advice as early as possible. Even when a country is a signatory, it still may not be that straightforward to deal with an application, and it still may take a long time to resolve.

What steps should you take?

If there are any concerns that your children’s other parent may remove your children from the UK it is important to act quickly and get advice from expert family lawyers as soon as possible. It can be helpful to make it clear to the other parent that you do not consent to the children being taken abroad and it may be necessary to obtain an interdict and other orders to prevent it from happening.

Prevention is far better than cure in these circumstances, especially where the country to which the children may be taken is not a signatory to the Hague Convention.

We are very experienced in providing advice in relation to children’s welfare, international child relocation and international child abduction. We are well-practised in the steps required to obtain urgent protective orders from the Court and can provide you with straightforward and sound advice. If you require any more information about these matters then please contact us.