• We separated some years ago and I reverted to my maiden name. I am contemplating remarriage and my new partner gets on particularly well with our son. I wonder what the law is concerning the change to my son’s surname.
  • A dispute has arisen over our daughter’s schooling. We cannot agree on a particular school. As we both have parental responsibility, how can this issue be resolved?
  • Our 17 year old son wants to marry and as parents, we both take a different stance upon whether this is right. How can this be resolved?
  • My prospects are better if I move to the South East of England. My ex partner will not agree to me taking the children. How can the court assist?
  • Our daughter has just inherited some money from her grandmother’s estate. There is a great deal of conflict over how this money is invested and what it is used for. Can we involve the Judge in determining this issue?
  • What is the difference between a Specific Issue Order and a Prohibited Steps Order?

Specific Issue Orders and Prohibited Steps Orders


Section 8 of the Children Act 1989 introduced legislation dealing with other family disputes in addition to those concerning residence and contact. However, like Residence and Contact Orders, applications for Specific Issue and Prohibited Steps Orders are subject to the court applying the welfare checklist which is also contained in the Children Act and requires the court consider:

  • The wishes and feelings of the child (considered in the light of his/her age and understanding).
  • His/her physical, emotional and educational needs.
  • The likely effect of any change in his/her circumstances.
  • His/her age, sex, background and any characteristics which the court considers relevant.
  • Any harm which he/she has suffered or is at risk of suffering.
  • How capable each parent is of meeting his/her needs.
In most cases both parents, whether married or not, have parental responsibility for their children. This is the legal term for the rights and responsibilities that parents have in relation to their children and has been described on an earlier page of this website entitled Children, Separation and Parental Responsibility. Parents can exercise their parental responsibility and make decisions together by agreement or separately. The more important the decision, the greater the onus on the parents to make it together.

Unfortunately, parents cannot always agree. Sometimes, the issue between them is so fundamental that agreement, if left to their own devices, is impossible. This can include situations where a parent wishes to move to another country, as described below. As a last resort, and in the absence of agreement, it may be necessary to apply to the court for an order determining how parental responsibility should be exercised. These are known as Specific Issue Orders and Prohibited Steps Orders. The court can make them on any matter on which the parents are unable to agree, although Judges are often reluctant to adjudicate in relation to such disputes and look to the parents for co-operation for the sake of the children. Any such order must be made in the best interests of the children.

A Specific Issue Order is where the court to gives directions to determine a specific issue which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. Such orders will cover, but are not limited to, issues such as where a child should go to school, whether a child should be brought up in accordance with a particular religion, or what surname a child should be known by. These orders are designed to be made either on their own or together with a Residence or Contact Order or a Prohibited Steps Order.

A Prohibited Steps Orders directs that no step which could be taken by a parent in meeting his/her parental responsibility for a child, and which is of a kind specified in the order, must be taken by any person without the consent of the court. Such an order may be required to, for example, stop a parent from taking a child out of the country or to stop a child from receiving a blood transfusion (which Jehovah’s Witnesses do not allow). The order can be made either on its own or together with a Residence or Contact Order or Specific Issue Order.

The process of applying for either a Specific Issue or a Prohibited Steps Order is the same as the application to a court for either a Residence or a Contact Order. Please see the page on Children – Residence Orders. The role of an officer of the Children and Family Court Advisory Support Service (CAFCASS) will be important in representing the children’s views, considering all of the circumstances of the case and providing an independent report to the parties and the Judge.

Taking A Child Abroad

  • I want to take my daughter to Corfu for a week. My ex wife will not allow me. Is there anything I can do to resolve this issue because I think my daughter will enjoy the holiday?
  • Yes I know it has been an acrimonious divorce but for my son to have a holiday with both myself, my new partner and her children will surely be something that he will enjoy?
  • My son has never been abroad and certainly never absent from me for more than a few days. I could not countenance letting him go away with his father.
  • I am paid very little for my occupation in this country. I have great prospects if I move to New Zealand. How likely is it that I can obtain the court’s permission to do so even though my son enjoys contact with his father?
  • What are the factors that the Judge will consider when determining my request to move abroad with my children?
  • I have excellent contact with my son. If they move to America I will hardly ever see him. Surely that will not be allowed because contact is in the best interests of the child. I think my ex partner’s idea about moving to America are unrealistic.
  • My partner is talking of moving abroad with our children. We were never married, I do not even have parental responsibility. Is there anything I can do to put a stop to this or at least get the Judge to listen to my perspective?
A parent cannot take a child (under the age of 16) out of the United Kingdom without the consent of all others who have parental responsibility for the child or in the absence of agreement, an order of the court. To do so, the parent may be committing a criminal offence under the Child Abduction Act 1984.

It is always sensible to discuss holiday plans with the other parent. If they will not agree to a reasonable request for a holiday, then an application can be made to the court. Such an application is likely to succeed as long as it is reasonable and in the child’s best interests.

If a Residence Order is in force then the person in whose favour the Residence Order is made may take the child out of the UK for up to 28 days without the consent of the other parent or the court but, of course, they should notify the other parent of their plans.

If a parent wishes to move abroad the consent of the other parent will be required. Even if the other parent does not have parental responsibility, there should be consultation and agreement. This will enable proper plans to be put in place for the child’s ongoing relationship with the other parent and will prevent any last minute disruptions with the move.

If the parent objects to the child’s move, the court will have to decide the matter by having regard to:-

  • the welfare of the child which will be paramount.
  • the proposals of the parent wishing to live abroad will be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
  • the affect upon the applicant parent and the new family of the child of a refusal of leave is very important.
  • the affect upon the child of the denial of contact with the other parent and in some cases his family.
  • the opportunity for continuing contact between the child and the parent left behind.
There is not a presumption that the parent who wishes to move abroad will be given permission to remove the child but great weight is given to their proposals. As long as their plans are reasonable, well thought out and genuinely motivated, permission is likely to be granted.

Holidays

It is always sensible to discuss holiday plans with the other parent and try and reach agreement as a holiday is meant to be a special time for the benefit of the child. If they would not agree to a request for a holiday, and no compromise can be reached, then an application can be made to the court to determine this issue. Such an application is likely to succeed as long as it is reasonable and in the child’s best interests. Understandable problems can occur if a child has never been abroad before, has never been absent from both parents for a week or more; the absent parent’s new partner’s attendance and perhaps other children being involved in the holiday.

If a residence order is in force then the parent in whose favour the residence order is made may take the child out of the UK for up to 28 days without consent but they should notify the other parent of their plans.

Leaving the Country to Live Abroad

If a parent wishes to move abroad the consent of the other parent will be required. Even if the other parent does not have parental responsibility, there should be consultation and agreement. This will enable proper plans to be put in place for the child’s ongoing relationship with the other parent and will prevent any last minute disruptions with the move.

A decision by the parent with care to leave the country and set up home abroad is very likely to meet serious resistance from the non-resident parent. In many cases, such a move will necessarily damage the relationship between the child and the non-resident parent. For that reason, a parent who shares parental responsibility with another parent, even if they are the parent with care, cannot remove the child from any jurisdiction without first obtaining the permission of the other parent, unless they obtain the permission (leave) of the court instead.

If the parent objects to the child’s move, the matter is likely to proceed to court. Where a move abroad is motivated by a genuine desire to improve the life of the parent with care and the child, and is practical, the court will give serious consideration to granting permission. The court will have to decide the matter by having regard to:-

  • The welfare of the child, which will be paramount.
  • The proposals of the parent wishing to live abroad will be scrutinised carefully and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
  • The effect on the Applicant parent and the new family of the child of a refusal of leave is very important.
  • The effect on the child of the denial of contact with the other parent and his wider family.
  • The opportunity for continuing contact between the child and the parent left behind.
There is not a presumption that the parent who wishes to move abroad will be given permission to remove the child but great weight is given to their proposals. As long as their plans are reasonable, well thought out and genuinely motivated, permission could well to be granted.

The court will, when granting permission, try to ensure that contact with the non-resident parent continues, although such contact will necessarily be more difficult and less frequent. Until an unmarried father acquires parental responsibility he cannot prevent the mother from removing the child from the country, and if an unmarried father fears that the mother may remove the child, he should apply to the court for parental responsibility immediately. The court may then take steps to prevent such a removal until a decision has been reached.

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John Turner, the Principal of Blackdown Family Law Solicitors, is a highly skilled solicitor who has dealt with all aspects of children advice and applications to court over the last 22 years. He will advise you on the most effective and efficient way of proceeding, whilst taking all of the circumstances of your case into account, most notably what is in the best interests of the children.



Areas of Family Law Work
click on the relevant link below for more information