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.
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.