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.
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.
