Few people will disagree that divorce or dissolution is one of the most stressful experiences and is usually a decision that is not taken lightly. There are many factors influence the break-up of a relationship, for example, the extremely challenging consequences of the economic crisis in the United Kingdom has, for some couples, proved to be the breaking-point.

Since Brexit, the way in which a petitioner  in a cross-border divorce secures jurisdiction in England and Wales has changed. Such matters are now based on the most appropriate jurisdiction as opposed to the first divorce petition to be filed. The jurisdiction in which the divorce is heard, where the parties have connections to both the United Kingdom and another country in the European Union, is decided on a range of factors including the location matrimonial residence, where the parties work, the location of matrimonial assets and where any children of the marriage are habitually resident.

The law related to divorce and the financial and child arrangement varies in different jurisdictions.  England and Wales is a popular choice mainly due to the perception that the English courts are believed to be fairer than some other jurisdictions, together with the wide discretion that the judges in England and Wales hold regarding maintenance and financial orders.

The Divorce, Dissolution and Separation Act 2020 has gone some way to remove the potentially lengthy legal battles associated with acrimonious divorce but the question of the financial and child arrangements is separate from the divorce and can often lead to bitter disputes.  Parents often disagree on issues that impact on a child’s welfare in divorce, particularly where one spouse is a national of a foreign country. This can lead to a complicated situation if one parent wishes to return to their home country and take the child or  children of the marriage with them and the other parent does not agree to this.  If the child or children are removed and taken to a foreign country without consent, the parent that remains in England is entitled to receive legal aid to assist with the return of the child.  Also, the left behind parent can take steps under The Hague Convention on the Civil Aspects of International Child Abduction 1980.

Daniel Theron, a partner, points out “if you strongly suspect your former spouse may take the children out of the country without permission with no intention of returning them, there are steps that can be taken to prevent this” Daniel further explained “in this situation you can apply to the Family Court for a Prohibited Steps Order (PSO) in order to prevent the child being removed from the jurisdiction of England and Wales.  The Court will not make such an Order without a considerable amount of consultation and investigation into the child’s situation to establish that it is completely necessary and in the child’s best interests.”

A Prohibited Steps Order will only apply to a single issue related to the child or children in question and is intended to protect children from harm.   In addition to the prevention of parental abduction there are several other issues that can be dealt with by a Prohibited Steps Order related to material changes in the life and living conditions of a minor child, for example:

  • 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.

An application for a Prohibited Steps Order will automatically trigger the appointment of an officer from Children and Family Court Advisory and Support Service (CAFCASS) who will investigate the possibility that an amicable agreement can be made between the parents.  After a thorough investigation, if the CAFCASS officer believes that it is not possible for an amicable agreement regarding the child’s habitual residence, further investigations will be carried out by CARCASS who will then submit a report to the court with their recommendations.

There is a provision to make a Prohibited Steps Order without the customary welfare check when a child may be forcibly removed immediately and such intervention by the court is required based on urgency.  A Prohibited Steps Order is shored up by the Child Abduction Act 1984 and also the provisions in the Family Law Act 1986 which assists in enforcing  Prohibited Steps Orders.

Giambrone & Partners family law department have considerable expertise in guiding and advising in cross-border divorce and the associated contentious areas working closely with our offices across Europe.  Our lawyers are fully aware of the need for urgency where the safety and welfare of children may be compromised and are available to assist with all forms of child arrangement matters.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation.  Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements.Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients.  He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

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