Eastenders storyline highlights some interesting issues about parental rights

22 Dec 2011

EastEnders fans are currently gripped by the storyline developing between Yusef, Zainab and Masood. In recent episodes, Yusef has attempted to persuade Zainab to leave the Country, together with Kamil, her and Masood's son, to set up home in Karachi, Pakistan.

Masood takes up regular contact with Kamil and he has made it known to Zainab that he will not allow her to remove him from the Country. Having become aware of what he perceives to be Zainab's intention to leave together with Kamil, Masood has instructed his solicitors to make an application to the Court for a Prohibited Steps Order.

The storyline is somewhat unusual and complex in that it involves issues of domestic violence between Yusef and Zainab, Zainab's fear of Yusef and Yusef's recent kidnapping of Kamil, placing him with unknown people in an unknown location. However, the issue of "international relocation" is a topic that the Courts are often asked to deal with, particularly following the breakdown of a marriage when one party decides they wish to return to their home Country and the support of their family.

As Masood and Zainab were married, they share parental responsibility for Kamil and Zainab, therefore, would need Masood's written permission to remove him from the Country. Putting aside Yusef's involvement, if Zainab did take Kamil out of the Country without having obtained Masood's written permission or an Order of the Court, she would be committing an offence under the Child Abduction Act 1984 and could be sentenced to a maximum of 7 years imprisonment. Zainab would only be able to remove Kamil from the Country without Masood's consent or an Order of the Court if she already had the benefit of a Residence Order and even then, she could not remove him for more than 28 days.

Retrieving a child from Pakistan would prove to be extremely difficult and preventing Zainab from removing Kamil in the first place, therefore, would be the sensible course of action. Masood's instructions to his solicitors to make an application for a Prohibited Steps Order is, therefore, the most appropriate way forward. This is an Order that prevents a parent from exercising an element of parental responsibility and, in this case, would prohibit Zainab from allowing Kamil to be removed from the Country without Masood's prior written permission or an Order of the Court. If Masood was aware that Zainab intended to leave now, he should be asking his solicitors to obtain an Order on an urgent basis without Zainab's knowledge. This is known as an ex parte (without notice) Order. In addition, as Kamil's removal from the Country would be unlawful, Masood could request that the Police issue a port alert. The Police would then circulate information about Kamil and Zainab to all ports in the United Kingdom and the National Ports Office to prevent Kamil being removed from the Country. These details would remain on the "stop list" for 28 days, following which, Masood would have to make a further application if this was considered necessary.

If Zainab maintained a wish to leave England to live in Pakistan together with Kamil, she should file an application for a Specific Issue Order allowing her to do so. The Court would then have to decide whether or not Zainab should be allowed to permanently remove Kamil from the Country.

In deciding whether or not to give Zainab permission to leave with Kamil, the Court's paramount consideration will be Kamil's welfare. The Court must determine whether it is in the best interests of his welfare to be permanently removed from the Country to reside in Pakistan, or to remain living in this Country whether that is with Zainab if she chooses to stay, or with Masood in the event that Zainab chooses to go to Pakistan with Yusef.

The law with reference to removing a child from the jurisdiction of the Courts of England and Wales is complicated and cases are regularly being decided in the Court of Appeal. Should you wish to remove a child from the Country, therefore, you should obtain legal advice from experienced lawyers before embarking on any action which may lead to a criminal prosecution against you. Should you wish to object to a child being removed from the Country, you should obtain legal advice at the earliest possible opportunity in order to decide whether urgent action is required to prevent a removal from taking place.

Prevention is certainly better than the cure!