We are UK residents...My boyfriend sees his 3year old son on a very regular basis, he has a good relationship with him and until now he had a good relationship with his ex. His ex wants to take his child and move from England to Scotland. This came about after she had a weeks holiday there and now shes decided she moving there based on that holiday! Hes been told by her and her family that he has no rights and that he cant stop her from taking him. He wants to know where he stands legally.
Its in my understanding that he has parental responsibility and she needs his permission to take his child to move to Scotland as Scotland is out of the jurisdiction of the courts of England and Wales, he can get a prohibited steps order if she tries to take him....is this true and how likely is it he would win with courts? Also can he just take his son and take her to court for custody as shes not that much of a good mother...where does he stand with all this legally and does he stand a chance?
Firstly, it is important to establish whether the father has Parental Responsibility for his son. If he is an unmarried father, he would have obtained Parental Responsibility by registering his name on the child’s birth certificate. If he was married to the mother or subsequently married her after the child’s birth, he would have also obtained Parental Responsibility at that point. Parental Responsibility is defined under Section 3(1) Children Act 1989 as being:
"all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
Parental Responsibility essentially allows an equal say in any key decisions made regarding the child, for example any educational, medical or religious decisions, any decisions on changing the child’s surname and removing the child from the Jurisdiction.
Furthermore, if the mother wishes to remove the child from the jurisdiction of England and Wales, she would need to obtain the father’s written consent. If the father is aware that she is likely to take the child without him consenting, he can take the necessary legal steps to prevent this.
The first legal step that he can take is mediation. Mediation was made a legal requirement under the new Children and Families Act 2014 on 22 April 2014. He would have to attempt mediation as a pre-court step by attending a Mediation Information and Assessment Meeting, this can be organised by contacting an organisation called National Family Mediation on 0300 4000 636. Mediation is the process by which the parties involved can attempt to reconcile their dispute with an unbiased trained professional about future arrangements for the child. The mediator does not tell parties what to do, but can help them to reach their own agreements amicably, whilst trying to improve communication between them. It may take more than one meeting before an agreement is reached. Please note there is legal aid available for mediation therefore if he is eligible, he will not have to cover the costs. If mediation is unsuccessful, the mediators would certify that mediation was attempted and unsuccessful then he would be able to make an application.
If the father is aware that the mother is likely to take this step soon, he can attempt to make an application for a Prohibited Steps Order to his local Family Court on an emergency basis. This would be made on the grounds that failure to act promptly would result in the mother taking steps to remove the child. To apply for The Prohibited Steps Order, he would need to complete a C100 form. The application form carries a fee of £215. There is a fee exemption if the father is unemployed and receiving income based benefits, if you are on a reduced income he could receive part remission. The form he would need for this is an EX160A form. The forms above can be obtained from
When deciding whether to grant the order, the court’s paramount consideration is the child’s welfare. Furthermore, the courts apply what is known as the welfare checklist. This is Section 1 (3) of the Children Act 1989 and it states,
...a court shall have regard in particular to -
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
As the child is 3 years old, the courts are unlikely to consider his wishes and feelings. A Family Court would start to attach weight to a child’s wishes and feelings from around the age of 11 or 12.This is through a rule known as Gillick competency.
The court generally request detailed information about the move from the mother such as where she intends to live and the facilities in the area, information on education, health care available and the general opportunities available to child. The courts would also request information about how contact with the other parent will be maintained. The courts would also look at the effect of a refusal of permission on the child, the effect of restricted contact with his father and other family members, and the father and mother’s overall motivations for wanting to move and opposing the move.
If the father wanted to pursue residence for the child, the courts would consider the factors in the welfare checklist outlined above. If there are no welfare concerns and the child is settled in the current arrangement, the courts are unlikely to change this but may formalise it in a Child Arrangements Order. If the father wishes to seek residence, he would need to follow the same legal steps outlined above starting with mediation then an application for residence under a Child Arrangements Order on the C100 form if mediation is unsuccessful.
If you need further advice, you or the father can contact our Child Law Advice Line on 0808 802 0008.