Trainee Legal Executive (Associate Member)
Family team, Birketts LLP
Worried because your ex hasn’t returned the children after they have spent time/lived with them? Francesca Dooley, Trainee Legal Executive in the family team at Birketts LLP, explains your legal options, when to call the police, and how a family solicitor can help.
When a co‑parent refuses to return the children after an agreed period of spending time/lived with, it can be frightening, stressful and emotionally overwhelming. Many parents are unsure what their rights are, or what practical steps they can take in the moment. This guide explains the legal position, what you should do straightaway, and the options available to help you restore normal arrangements as safely and quickly as possible.
Is it against the law if my ex doesn’t return our children?
In England and Wales, the law treats this situation differently depending on whether there are existing court orders:
- Where there is a Child Arrangements Order in place
If a Child Arrangements Order (CAO) is in place setting out the time the children live with/spend time with each parent and the other parent does not adhere to this then they are in breach of the court order. This is a serious matter, and the court can enforce the order. However a parent can admit to breaching an order if they say they have a reasonable excuse for example that there is a safeguarding reason not to return the children to the care of the other parent. - Where there is no court order
If no CAO exists, the police are limited in what they can do unless there is an immediate safeguarding concern. Both parents typically have parental responsibility, which means each parent has the right to have the children with them unless a court order says otherwise. A parent can’t ‘kidnap’ their own child/ren. The police may do a welfare check, but generally are not keen to get involved.
However, refusing to return the children can amount to child abduction if one parent removes the children without consent and without a reasonable excuse from the jurisdiction of England and Wales.
Step 1: Try to Make Contact and Stay Calm
Although emotions run high, your first step should be to:
- Attempt contact with the other parent by phone, text or email
- Ask for a clear explanation of the delay
- Keep records of all communication
Often, misunderstandings can be resolved without escalation, but documenting everything is important if the matter goes further.
Step 2: Consider Contacting the Police
The police can intervene in some circumstances, such as:
- Where a Child Arrangements Order states the child/ren are to be in your care
- Where there is a risk of harm/safeguarding reasons
- Where a parent threatens to take the children out of the jurisdiction
- Where the children have been taken by someone without parental responsibility
Police may use their powers under the Child Abduction Act 1984, but they will generally try to encourage the other parent to comply voluntarily.
If there is no immediate risk, the police are likely to advise you to seek legal advice/a Family Court remedy.
Step 3: Seek Legal Advice Quickly
A family law solicitor can advise on:
- Applying for a Child Arrangements Order (if none exists)
- Enforcement of an existing CAO
- Prohibited Steps Orders, preventing removal of the child
- Specific Issue Orders, addressing particular disputes
- Emergency remedies where the child’s welfare is at risk
Early legal advice is key to preventing the situation from escalating.
It is important to protect a child from conflict and any communications with the other parent should set out the child’s experience of this conduct, and the impact that they were no doubt expecting to come back to the care of the other parent. Further that there should not be conflict at school (parents jostling to collect a child/ren), nor should a child be kept out of school.
Step 4: Apply to the Family Court (Urgently If Necessary)
If your ex continues to refuse to return the children or there is a safeguarding concern, you may need to apply to court.
Emergency Applications
You can apply without giving notice to the other parent if:
- You believe the children are at immediate risk
- The other parent has threatened to take them abroad
- There is a history of non-return
The court can make urgent interim orders for the return of the children. They are generally very reluctant to do hearings without notice to the other parent. They will list at short notice instead. There are special provisions in the law relating to fear that a child may be taken out of the country to have female circumcision for example.
Enforcement Applications
Where a CAO has been breached, the court can order:
- Warning notices
- Unpaid work requirements
- Compensation for financial loss
- Varying the existing arrangement, including changing where the child lives in serious cases
The court’s focus will always be on the child’s welfare, not punishing parents but repeated non-compliance is taken seriously. However as set out above a parent will be asked if they had a ‘reasonable excuse’
The family court is reluctant to make punitive orders, including for costs as the general rule is no costs are awarded in children proceedings.
Step 5: Consider Mediation (If Safe to Do So)
If there is no immediate risk and communication is still possible, mediation can help resolve:
- Return arrangements
- Future contact schedules
- Handover arrangements
- Holiday contact and communication
Mediation is voluntary but often quicker and less stressful than court.
How to Protect Yourself Against Future Problems
You can help prevent future issues by:
- Having a clear, written agreement
- Using shared parenting apps to record communication
- Requesting a Child Arrangements Order to formalise living and spending time with arrangements
- Seeking a Prohibited Steps Order if you fear the children might be taken elsewhere
A structured plan reduces the chance of disputes and provides clarity for both parents.
When to Seek Help Immediately
Contact a family solicitor or the police urgently if:
- Your ex refuses to disclose your children’s location
- You suspect they may be taken abroad
- There is domestic abuse
- The children are at risk of harm
You do not have to navigate this situation alone.
How Our Firm Can Help
We can support you with:
- Emergency court applications
- Enforcement of existing orders
- Drafting clear and robust contact arrangements
- Advice tailored to your family’s situation
- Representing you in negotiations or court proceedings
Our priority is to protect your children’s welfare and help you restore stability as quickly as possible.
About Francesca Dooley
Francesca is a Graduate Member of the Chartered Institute of Legal Executives (MCILEX) and joined Birketts as a Trainee Legal Executive in May 2023. She works within the Family Team in the Ipswich office.
Since July 2024, Francesca works closely with Katie Beaven, Juliet Harvey and Ivana Radovic assisting them in providing divorce advice, financial remedies, separation advice/deeds, dissolution of civil partnerships, children arrangements, prenuptial agreements and post-nuptial agreements.
Francesca also deals with surrogacy, private adoption matters, declarations of parentage, as well as platonic co-parenting arrangements.
Francesca was previously working in Birketts’ Property Litigation Team, assisting individuals with high value and complex property disputes. This experience has refined Francesca’s ability to assist clients in resolving their disputes, whether through court or via Alternative Dispute Resolution, and be a source of support when emotions are running high.
Francesca is currently studying with CILEX Law School to qualify as a CILEX Lawyer. Francesca has completed both the Foundation Stage and the Advanced Stage and is now in her final year studying the Professional Stage. Prior to joining Birketts, Francesca has gained over 12 years’ experience working as a Paralegal and assistant in areas including Mental Health Law and Dispute Resolution.