Last year, Walker Family Law was involved in an important Court of Appeal case about the representation of children in abduction proceedings under the Hague Convention 1980. Two cases were heard together and the full judgements can be read at the links below:
Re D (A Child) (Abduction: Child’s Objections: Representation of Child Party), in which we represented the mother.
C v M (A Child) (Abduction: Representation of Child Party)
In any family court case, children can be caught up in very bitter disputes between their parents. In abduction cases, conflicts arise when a child opposes returning “home,” especially when it conflicts with the applicant parent’s wishes. It is really important that a child’s voice is heard in these circumstances, as one of the five limited defences to a Hague Convention application is a child’s objection to a return.
There are various methods supporting children’s voices in family courts, sometimes involving separate representation for the child, ensuring effective participation.
In abduction proceedings, this can either be by:
A ‘Cafcass guardian’, a court social worker, who will then instruct a solicitor.
A ‘solicitor-Guardian’, where a child instructs the solicitor directly, rather than via a Cafcass officer.
A solicitor-guardian was appointed for the child, ‘D’, at the first hearing. Through the solicitor-guardian, D expressed his wish to remain in England. At the final hearing, the judge concluded that although D objected to returning to Singapore, he had been “heavily and unduly influenced” by his father in England. The judge also expressed concerns about the solicitor guardian providing opinion evidence regarding D’s objections.. D appealed.
The court had ordered the return of the child, ‘X’, to Mauritius, but X then applied to be joined as a party and to set aside the return order. A solicitor-guardian was appointed for X. At a final hearing, the judge refused to make a return order and accepted evidence that it was likely X’s views were her own and there would be ‘significant emotional consequences’ if she was ordered to return to Mauritius against her wishes. The father appealed.
A key issue for the Court of Appeal was the role of a solicitor-guardian and the scope of the evidence they should give, particularly considering they do not have the same expertise and training as a Cafcass officer.
Due to the significance, the Court permitted Reunite International and the Association of Lawyers for Children to intervene.
In Re D, The Court of Appeal allowed D’s appeal and ‘regrettably’ sent the case back to the High Court for a new hearing. The Court agreed with much of the analysis of the judge regarding the solicitor-guardian’s evidence but concluded that the judge had effectively treated his evidence as inadmissible, which was not correct and affected the fairness of the proceedings.
In C v M, the father’s appeal was dismissed.
With regard to the overall guidance regarding solicitor-guardians, the Court of Appeal has asked that this be addressed by the Family Procedure Rules Committee. In the meantime, the guidance can be summarised as follows:
It should be rare that a child is separately represented. The child’s voice will normally be sufficiently heard through Cafcass report.
If suggesting separate representation for a child, they must meet the Cafcass High Court Team first, except for compelling reasons.
Non-expert opinion evidence is admissible .
Pending further guidance, certain matters, like assessing the authenticity and strength of a child’s views, remain within Cafcass officers’ purview.
Currently, solicitor-guardians should refrain from providing opinion evidence beyond what’s essential to justify the child’s competence to instruct them.
For information on how we can help, please see our Child Abduction page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
When child abduction is discussed most people will envisage a parent taking their child to some foreign country, beyond the borders of the United Kingdom.
But what if the parent moves the child from one country in the UK to another country in the UK? Is that child abduction? After all, the countries within the UK do not all share the same legal system.
Can a parent abduct their own child in the UK? To answer the question we need to look at exactly what child abduction means
Child abduction is actually a criminal, rather than civil, matter (although as we will see in a moment there are also civil (i.e. family law) issues to take into consideration when moving a child to another country).
The criminal offence of child abduction is set out in the Child Abduction Act 1984, which states that a person commits the offence if they send or take a child under the age of 16 outside of the UK without the appropriate consent.
So, can a parent abduct their own child in the UK? There is the answer to the question: child abduction offense occurs only when the child is sent or taken out of the UK. It is not a criminal offence to take or send a child from England, Scotland, Wales, or Northern Ireland to another one of those countries.
For the sake of completeness, we should explain what is meant by “the appropriate consent”.
What the ‘appropriate consent’ is will depend upon the circumstances, but will normally mean that a father will need to obtain the consent of the mother and a mother will require the consent of the father, if he has parental responsibility for the child. However, if either parent has a child arrangements order stating that the child should live with them then they can take the child outside of the UK for up to 28 days without the other parent’s consent.
Not necessarily.
Just because it is not a criminal offence to move a child from one country in the UK to another country in the UK it is still recommended that the parent first obtain the consent of the other parent, if the child is to be moved to a country with a different legal system, for example from England to Scotland (England and Wales share the same legal system but Scotland’s system is completely different). If you do not obtain consent and the matter subsequently goes before the court, then the court is likely to take a dim view of you moving the child without consent.
And if you do not obtain the other parent’s consent and they object to the child being moved they can apply to the court for an order requiring the child’s return, and that order can be registered in the courts of the country to which the child has been taken, so that those courts can enforce the return order.
Similarly, if there are any existing court orders in respect of a child under 16, they will be recognised and enforced in all courts inside the UK, provided the order has been registered in the court of that country.
In view of these things if you wish to move your child to another country in the UK and the other parent does not consent to the move then the best course of action is to apply to the court for permission to make the move.
If you are considering moving with your child to another country within the UK then you should first seek expert legal advice. For more information regarding moving a child within the UK, and how we can help, see this page.
For further information on how we can help, please see our Child Abduction page.
There are times when a parent will want to take their child abroad, whether it be for a holiday, or a permanent relocation to another country.
Whatever the reason for taking the child abroad, the parent will require the permission of everyone with parental responsibility for the child (preferably in writing), or of the court.
And taking a child abroad without permission is the criminal offence of child abduction, so it is vital that the parent knows and understands the legal position. (Note that abduction refers to taking the child out of the UK – it is not an offence to take a child to another country within the UK.)
So if you require the permission of everyone with parental responsibility for the child, the next question is: who has parental responsibility?
To answer the question we need to consider how parental responsibility is acquired.
The mother of the child will always acquire parental responsibility automatically.
The child’s father will also acquire parental responsibility if he is married to the mother, or is named as the father on the child’s birth certificate.
Otherwise, the father can acquire parental responsibility with the mother’s agreement, or by obtaining a parental responsibility order from the court.
If the child is adopted the birth parents will lose parental responsibility, and the adopters will acquire it.
Apart from the parents, parental responsibility may be held by anyone who has been granted it by a court, by a legal guardian for the child, and by the local authority if a care order has been made.
This is just a brief outline of the law on acquiring parental responsibility. If in doubt as to who else has parental responsibility for your child, seek expert legal advice.
There is an exception to the requirement to obtain permission, where the parent wishes to take the child abroad for a holiday.
If that parent has a child arrangements order in their favour stating that the child should live with them, or a residence order made before the 22nd of April 2014, then they may take the child abroad for up to 28 days without needing to obtain permission, unless the order specifically prohibits this.
The last question to answer is: if the person(s) with parental responsibility does not give permission, will the court grant permission?
As usual with any question relating to children, the court will make its decision on the basis of what it considers to be best for the welfare of the child.
And in considering what is best for the welfare of the child the court will take into account certain factors, including the ascertainable wishes of the child (considered in the light of their age and understanding), the child’s needs, the likely effect on the child of going abroad, and any harm that the child is at risk of suffering.
So far as holidays are concerned, the court will normally take the view that the holiday is likely to be beneficial for the child, and will therefore grant permission, so long as the holiday is for a reasonable duration, is to a safe location, and there is no risk that the child will not be returned.
Obtaining permission to permanently relocate is obviously a more serious matter. It will still be decided by the court by reference to the child’s welfare, although other factors may be taken into account, such as the reasons for the relocation, and the effect upon the parent wishing to relocate of refusing to grant permission.
If you need to apply to a court for permission to take a child abroad you should seek expert legal advice, especially if you wish to permanently relocate to another country.
For further information, please see the Child Arrangements page.
It is not unusual for a parent to consider moving abroad with their children, particularly after divorce. Whether that’s because their work takes them there, because their new partner lives there, or because they have some other connection with that country.
But a parent cannot take their children permanently out of the UK just because they want to. They will need the consent of the other parent (or anyone else with parental responsibility for the children) and, failing that, they will need the permission of the court.
So how will the court decide whether to give you permission to move your children abroad?
In 2001 the Court of Appeal set out a number of guidelines that the court should take into account when deciding whether to grant permission for a child to be relocated to another country. These guidelines included:
(i) That there is no presumption in favour of the parent applying for permission to relocate.
(ii) That the reasonable proposals of the parent with a residence order (i.e. what is now a child arrangements order stating that the child should live with that parent) wishing to live abroad carry great weight.
(iii) That consequently the proposals have to be scrutinised with care, and the court needs to be satisfied that there is a genuine motivation for the move, and that it is not simply intended to bring contact between the child and the other parent to an end.
(iv) That the effect upon the applicant parent and any new family of the child of a refusal of permission is a very important consideration.
(v) That the effect upon the child of the denial of contact with the other parent and in some cases his/her family is also very important.
(vi) That the opportunity for continuing contact between the child and the parent left behind may be very significant.
These guidelines were subsequently the subject of considerable criticism, in particular that they favoured the parent with whom the child was living, most often the mother, and that this amounted to a virtual presumption in favour of a mother’s application.
So in 2016 the Court of Appeal clarified matters by stating simply that there is only one principle in these relocation cases, and that is that the welfare of the child is paramount. There was no presumption in favour of mothers, and any guidance is just that – designed to be of assistance (or not), depending on the circumstances of the case.
So it may be that in a particular case the court will consider the 2001 guidance, or part of it, but that guidance will not alone decide the case. At every step of the way the court will be considering what is best for the child’s welfare.
So, the advice for anyone wishing to move abroad with their children is as follows:
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration. Please contact the team to speak to one of our specialist solicitors.
It can be a parent’s worst nightmare: the other parent taking their child out of the country without their consent.
Parental kidnapping, as it has been called, can happen for a variety of reasons. It may be that the abducting parent has family in another country and wants the child to live with them, it may happen as a response to a disagreement with the other parent over arrangements for the child, or it may simply be done out of spite towards the other parent.
Whatever the reason, child abduction is a very serious issue, that can have catastrophic consequences for the child, and their relationship with the other parent.
It is therefore essential that parents have as much information as possible regarding child abduction, so that they know how to prevent it, and what to do if it happens.
Here are five of the most important things a parent needs to know:
It is a criminal offence under the Child Abduction Act 1984 for anyone to take or send a child under the age of 16 outside of the UK without the appropriate consent.
What is the appropriate consent depends upon the circumstances, but for most children it will mean the consent of the mother and of the father, if he has parental responsibility for the child.
As it is a criminal matter, the police should be contacted if it is feared that a child may be taken from the UK without consent, or if they have already been taken.
If you wish to take a child out of the UK but can’t obtain the appropriate consent then you can apply to the court for its consent.
Note that the above refers only to taking the child out of the UK. It is not a criminal offence to take a child from one country in the UK to another, even if the two countries have different legal systems, as is the case with England, Wales, and Scotland.
Having said that, if you wish to take your child to another country within the UK then it is still highly recommended that you obtain the consent of the other parent.
If your child has been taken to another country in the UK you can seek an order that they be returned, and that order can be registered and enforced in the courts of the country to which they have been taken.
The court will only make an order allowing the removal of a child from the UK without the other parent’s consent if it considers that this would be best for the child’s welfare.
Relevant factors here include the ascertainable wishes of the child, the child’s needs, any harm that the child may suffer, and how capable each parent is of meeting the child’s needs.
The court will also of course consider such things as the reasons for the move, and the effect upon the child of reduced contact with the other parent.
As we will see in a moment, it can be very difficult to secure the return of a child who has been abducted abroad. It is therefore best to prevent any abduction, if you can.
If you have reason to believe that your child will be abducted imminently (within 48 hours) then you can ask the local police to issue a port alert, which will alert all UK points of departure, to try to prevent an abduction. The port alert lasts for 28 days.
Otherwise, if the matter is not so urgent you can apply to the court for an order preventing the removal of the child from the UK. This may result in the other parent making a cross-application for the court’s consent, as explained above.
If your child has been abducted to another, non-UK, country then unless the other parent agrees to return them you will need to obtain a court order for their return.
Exactly how you do this depends upon whether the country to which the child has been taken is a signatory to the Hague Convention on Child Abduction. If it is, then there is a streamlined procedure which can secure the return of the child quite quickly.
Most countries are signatories to the Convention but some are not, mostly in Africa, the Middle East, and Asia.
If your child has been abducted to a country that is not a signatory to the Convention then you will need to take proceedings in the courts of that country to secure their return. This can be a longer, more complicated process, with a greater chance that the courts will not order a return.
As stated above, child abduction is an extremely serious issue, and if you have concerns that your child has been, or will be, abducted, then you should take expert legal advice, as a matter of urgency.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. Please contact the team to speak to one of our specialist solicitors.
Modern families often have international connections, for example where they live in the UK but one or both of the parents originates from another country.
These international connections can of course be extremely beneficial for children growing up in such families. However, they also raise the spectre of what can be a parent’s worst nightmare: child abduction.
But just what is child abduction, what are its consequences, and what can you do if your child has been abducted abroad?
The law on child abduction is set out in the Child Abduction Act 1984, as amended.
The Act makes it a criminal offence for anyone to take or send a child under the age of 16 out of the UK without the appropriate consent. A person guilty of such an offence could be liable to a term of imprisonment, a fine, or both.
The vital question, therefore, is: what is the ‘appropriate consent’?
The ‘appropriate consent’ essentially means one of two things:
There are, however, two exceptions to the above. You do not commit an offence by taking or sending a child out of the UK without obtaining the appropriate consent if either: you are named in a child arrangements order as a person with whom the child is to live and you take or send the child out of the UK for a period of less than one month; or you are a special guardian of the child and you take or send the child out of the UK for a period of less than three months.
Accordingly, if you wish to take your child abroad, do not come under an exception, and cannot obtain the consent of everyone in paragraph 1 above, then you will need to apply for the consent of the court.
In deciding whether to grant consent the court will consider not just the welfare of the child but also such matters as the reason for taking the child abroad, and the effect upon the child of reduced contact with the other parent.
The fact that the other parent may have committed a criminal offence under the Act does not of course mean that your child will be returned to this country. What, then, can you do if your child has been abducted abroad?
The answer to this depends upon whether the country to which the child has been taken is contracted to the 1980 Hague Convention on Child Abduction. Most countries are contracted (at the time of writing there were 103 contracting parties).
The Convention essentially works on the basis that any child abducted to another country should normally be returned to their country of origin, where the courts will decide where the child should live.
The Convention therefore provides a mechanism for the quick return of children to their country of origin. If your child has been abducted to a Convention country you should therefore apply under the Convention for their summary return. A return will usually be ordered if the application is made within the first 12 months of the abduction, unless it is considered that it would place the child at grave risk of harm.
If your child was taken to a country that is not contracted to the Convention then there is no similar mechanism available for the return of the child. You will therefore have to take legal proceedings in the country to which the child was taken. Obviously, this may make it considerably more difficult to secure a return.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
The International Child Abduction and Contact Unit (ICACU) carries out the day-to-day duties of the Central Authority of England and Wales for the operation of the 1980 Hague Child Abduction Convention (plus some other international conventions).
The 1980 Hague Child Abduction Convention is an international, multilateral treaty, which seeks to protect children from the harmful effects of cross-border abduction by providing a procedure enabling countries to work together to ensure that an abducted child must, with few exceptions, be returned to their home country.
The Convention also ensures protection of rights of access (contact) across borders.
The UK is a signatory to this Convention, along with over 90 other countries. There are three separate Central Authorities within the UK (separate ones for England/Wales, Scotland and Northern Ireland). This article focuses on the procedure in England, since our practice is based in England.
If a child is brought to England from another Hague Convention country, without the consent of both parents, this may be a child abduction. We use the term “abduction” as a shorthand, but the technical terminology is a wrongful removal or retention. There are technical rules to determine whether or not a child’s removal or retention is wrongful within the meaning of the convention.
The “left behind parent” will usually contact the Central Authority in their own country, who will refer the case to ICACU.
When ICACU receives an application for the return of a child, they will refer the application to a solicitor whom it knows to be experienced in international child abduction cases. ICACU has a list of suitably accredited solicitors for this purpose. The solicitor will take conduct of the case and make an application for legal aid to meet the legal costs of the “left behind parent” and will then apply to the High Court for an order for the return of the child to the originating country. Sometimes this will involve urgent applications to try and locate a child who is suspected to be in the country but whose precise whereabouts are unknown. Cases of this nature will involve the Tipstaff, who is the High Court Enforcement Officer, and who works closely with the Police to locate and secure the whereabouts of abducted children.
The Convention directs that abduction cases should be completed urgently within 6 weeks.
The Convention seeks to ensure the swift return of the child to their home country so that the Court in their country of residence can make the appropriate orders about their long-term living arrangements. The Convention does not work explicitly to return the child to the other parent but rather to their country of residence where any applications by either party can be properly considered by the Court of that jurisdiction.
Lucy Roberts – Child Abduction Specialist
Another type of application often referred via ICACU are international contact cases – these are cases where a parent in another Hague Convention country wishes to apply to the Courts in England and Wales for contact to a child who lives in this jurisdiction. The case will once again be assigned to an accredited solicitor from ICACU’s referral list, who will apply for legal aid and make an application to the Court. Unlike abduction referrals, these cases are not treated as ‘urgent’ but will take effect much like any other application for Child Arrangements in England. The main differences involve logistical issues surrounding international travel, language barriers and time zones.
Lucy Roberts is one of our private law children Solicitors and has expertise in International Child Abduction working with the International Child Abduction and Contact Unit (ICACU). If you need any assistance with a child abduction issue, please get in touch with Lucy on 03339 390188.
Reunite International is a leading UK charity specialising in international parental child abduction and the movement of children across international borders.
They operate a telephone advice line in the UK offering practical, impartial advice, information and support to parents, family members and guardians who are involved in cases of international parental child abduction – including those who have had their child abducted, or who may have abducted their child, and also including parents who fear their child may be at risk of abduction.
Reunite also offer parents a mediation service specialising in cross-border disputes. Their mediation practice has shown that parents can step outside of the court process to resolve their issues and come to amicable agreements that best meet the needs of their family.
Reunite are committed to raising the profile of international parental child abduction on the international stage and helping to improve practices for the future. They work closely with government departments, including the Ministry of Justice and the Foreign, Commonwealth and Development Office here in the UK, and have working relationships with lawyers, academics, police services, and other statutory and voluntary organisations across the world.
Many parents or family members who are faced with an international child abduction scenario might find and contact Reunite International as their first port of call. If those individuals require legal advice or representation, they will be signposted to Reunite’s Lawyers Listing.
The issues surrounding the breakdown of a relationship with an international element are complex, and inaccurate or late provision of legal advice frequently allows unlawful abduction to take place. With these problems in mind, Reunite has established a network of specialist family lawyers with a particular interest in the field of international parental child abduction and the movement of children across international borders.
We are pleased to be able to offer the necessary specialism and expertise to be included in this listing, and we look forward to working with families who need our help.
Lucy Roberts is a solicitor on our Children Law Team working mainly on private law children matters. She qualified as a solicitor in 2012 and relocated to the Southwest in 2014. Lucy’s particular speciality is working in International Child Abduction cases, which is mainly practiced by lawyers in London and heard by the High Court. Lucy is one of just a handful of solicitors in the Southwest who is accredited to conduct this work.
