[Solved] Wife refused to return my youngest child

Hi gbosher

Man thats a horrible situation. We would advise you call the Childrens Legal Centre asap for FREE legal advise. CLC are our legal experts so we have asked them to also log on and respond to your question, however if you want to call them the number can be found here.

http://www.dadtalk.co.uk/directory_of_s ... l%20issues

Dear Gary,

Thank you for contacting the Children’s Legal Centre, an independent charity concerned with law and policy affecting children and young people.

As you are married both you and your wife have Parental Responsibility for your children, which gives you both a right to have the children with you. As you both have this right and there appears to be nothing legal in place to state who the children live with then the mother has not committed an offence by keeping the child.

This sort of situation can become quite nasty as you have the right to remove your child, and the mother has the right to take her back and it often becomes very hostile and is never best for the children to enter into this.

You do have the option of making an application to court for full residence of one or both of your children. It is advisable that this application would be made for both children, even if you do not believe the mother would attempt to keep your older child.

To make an application to court you can apply yourself or using a solicitor. To make the application yourself you can download the forms from www.hmcs.gov.uk and the forms you require are for C100, CB1 and CB3.

The C100 is your application. The other forms are guidance on the court process and serving papers on the mother and other useful information.
When filing the C100 at the Family Proceedings Court there will be a fee of £175.

As well as applying for a full residence order, it would be advisable to apply for an interim order also, to try and have your daughter returned to you whilst the proceedings are being heard. For this you can write on the C100 that you are applying for an interim residence order and a full residence order.

There is a lot of information about representing yourself on www.elc.org.uk , under the law and UK court system sections. This is known as acting as a ‘Litigant in Person’.

The court would call you and the mother into court, and usually there will be several hearings, CAFCASS may be involved and the court will hear all the circumstances.

Your children’s opinions can be heard, but these will be given weight in light of their age and maturity. Generally below the age of approximately 12 years old a child’s opinion will not hold a lot of weight.

The court will also consider the effect of separating the children and all other factors.

There is no guarantee either way with these types of applications, and although the court are reluctant to change a child’s residence once a child becomes settled somewhere they will do if they feel it is best for the child.

As your daughter has lived with you for the last two years and the mother has simply refused to return her, this would be a consideration, and it is possible that the courts would feel that the mother has acted unreasonably in doing this and that your daughter is used to living with you and should continue to do so. It will be for the courts to decide what is best for your daughter.

It is likely that you would have a very strong argument for gaining residence of both children as they have lived with you for this period of time, and also because they are familiar with your family unit. It can not be predicted what the court will rule, but these will be strong considerations.

We hope this information is useful to you. Should you require further advice please contact the Child Law Advice Lien on 0808 8020 008 and an advisor will be happy to help.

Kind regards

Children’s Legal Centre

I'd just like to add an opinion to this - although the courts won't rely too heavily on your daughter's opinion, because of her age, at 10, your son's opinion will certainly have some weight. The courts would certainly, IMO, put a lot of weight on keeping your children together - I would certainly say that you should go for the interim order as soon as possible so that your ex has as little opportunity to say that your daughter has settled.