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B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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UK: International Divorce – Preventing The Risks Of Parental Child Abduction

This article is from the UK, and the laws in each country are slightly different, but we have reprinted it here because the issue is universal. Taking a minor child overseas for relocation without the consent of the other parent is child abduction, and laws exist to prevent it or recover the child. For more on international divorce, child abduction and relocating with minor children in the South African context, see Further reading below.

Reprinted from Mondaq.com, by Giambrone & Partners – 2021-06-23

The enormous emotional and financial pressure that the Covid-19 pandemic and subsequent lock-downs have placed on married couples has regrettably resulted in a substantial rise in divorce enquiries.  Now, more than ever, in relationship break-up between nationals of different countries risks minor children of the marriage being taken to one parent’s home country and not returned.

Giambrone’s highly regarded family law team regularly deals with cross-border divorce and recognises the real risk of a spouse relocating with a child or children in another country with no intention of returning.  Our lawyers can assist with measures that can be taken before the event to prevent this from happening.  A Prohibited Steps Order which may be made under section 8 of the Children Act 1989 can be sought through the court which will prevent any such action without the court’s express permission, contravening a Prohibited Steps Order amounts to child abduction.

A Prohibited Steps Order is not granted lightly and applies to one single particular issue related to children of 16 years and under.  The Order is granted to ensure that a parent with parental responsibilities cannot take any steps expressly specified in the Order without the permission of the court.  The steps mentioned in an Order nearly always relate to the removal of a minor child or children to another country.  However, that is not the sole step to which a Prohibited Steps Order can relate.  There are several other issues that can be controlled by the court.

Prohibited Steps Orders can apply to the following range of issues:

  • Taking a child away from the United Kingdom to another country
  • Removing a child from the custody of a parent or other approved caregiver;
  • Preventing a child from being moved to another location within the United Kingdom;
  • Preventing a child from contact with particular people
  • Removing a child from their school;
  • Changing a child’s name or surname;
  • Making decisions in respect of a child’s medical treatment, etc.

Before a Prohibited Steps Order is granted the court will need to ensure that a mandatory welfare check has been undertaken in respect of the child or children.  The only time when this is not the case is in emergency circumstances where there is an imminent chance that the child will be forcefully relocated abroad.

Supportive measures are triggered as soon as a Prohibited Steps Order application is made and an officer will be appointed from the Children and Family Court Advisory and Support Service (CAFCASS) whose role is to look into the possibility of an amicable agreement can be arrived at between the parents regarding the issue without the need for court intervention.

If the CAFCASS officer concludes that no such agreement can be reached, additional investigations will be undertaken by the CARCASS officer followed by the submission of a report to the court with their recommendations.

The court will not grant a Prohibited Steps Order unless there is comprehensive evidence that such an Order is in the child or children’s best interests.

Giambrone’s expert family team points out that if a parent or another person acting on behalf of the parent breaches a Prohibited Steps Order an offence may have been committed relating to the Child Abduction Act 1984, furthermore the provisions in the Family Law Act 1986 assist in enforcing Prohibited Steps Orders.

For more information about Prohibited Steps Orders and prevention of Child Abduction as well as assistance with cross-border divorce please click here

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.


At Cape Town Divorce Attorneys, we’ve helped many parents navigate the difficult scenario of post-divorce relocation. We can help you negotiate changes to your parenting plan, if you need to relocate to another province or country. If your child has been abducted, we will support you in lodging a case with the central authority (Family Advocate) in South Africa or in seeking an order in a non-member state. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

Further reading:

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Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.