We are pleased to have family law expert Jane from Devon-based law firm Hartnell Chanot explain to us in simple English some important aspects of Child Abduction.
“Child abduction”, may sound dramatic, but due to the increase in family breakdown and ease of travel, separated or divorced parents who move their children abroad or decide to remain abroad after a holiday, may not realise that they have officially abducted their child. Many fail to appreciate that they need the permission of the other parent, or the court, to move abroad, and without it they are contravening the other parent’s rights.
Once a relatively rare phenomenon, an increase in cross-cultural marriages, higher divorce rates, changes in immigration laws and cheaper foreign travel have seen a rise in international child custody disputes, some of which have resulted in parental abduction as parents seek to take their children out of the country without permission.
What is parental child abduction?
Parental child abduction occurs when a person who is connected to a child takes them away from their country of habitual residence without permission of either those with parental responsibility or the courts.
Most commonly, this takes place following a separation or divorce and is carried out by the parent who has not been awarded custody of the child.
Is it a criminal offence for a parent to abduct a child?
Under the Child Abduction Act of 1984, it is a criminal offence for anyone connected with a child to take them out of the UK for more than 28 days without the consent of any other person who has parental responsibility for that child or a consenting order from the courts. A person is connected with the child if they are a parent of the child, guardian or special guardian, anyone who has a residence order for the child or who has the child living with them.
Those required to give their consent would be the mother, the father (if he has Parental Responsibility), guardian, special guardian or anyone who has the child living with them or has permission from the court.
International child abduction
International child abduction occurs when anyone connected with a child takes the child over an international border and thereby away from their place of habitual residence without the permission of those with Parental Responsibility or when they retain them after a holiday and therefore beyond the original permission the other person may have given. These are referred to as “wrongful removal” and “wrongful retention”.
The Hague Convention and European Convention
The UK is a signatory and bound by the regulations set out in The Hague Convention on the Civil Aspects of International Child Abduction and a European Regulation know as “Brussels II revised”. Where countries are signatories to either or both regulations then they agree to work together in order to deal with situations where a child aged under 16 has been wrongfully removed or retained.
A signatory country will not however enter into custody disputes or get involved in the legal dealings regarding a custody case; instead these regulations seek to ensure the swift return of the child to their country of residence where any applications by either party can be properly considered by the Court of that jurisdiction.
Brussels II revised covers 26 Member States of the European Union States while the Hague Convention has a broader geographical scope. To date 68 states are signed up to the Hague Convention.
Whilst in general the UK strictly adheres to returning children there are exceptions but only where the court consider it appropriate. This primarily centres around welfare issues and the child’s wishes and feeling, if they are of sufficient maturity. It is the latter which can often bring about consensus between parents and mediation can be of assistance here as well. The emphasis of the Hague Convention and Brussels II is for the court of habitual residence to resolve any issues.
The Court‘s discretion to refuse to return a child under some circumstances include:
• If it can be proved that the person or institution having the care of the child did give their consent to the removal or was not exercising the custody rights at the time of removal.
• There is a risk that return could expose the child to grave risk of physical or psychological harm.
• If a child has been wrongfully removed for more than one year it can be argued that the child is settled in their new environment and removal would not be in their best interests.
• In some states if the child has reached sufficient maturity and states they do not wish to be returned this can be prohibitive.
It is therefore vital, in the case of any parental abduction issues, to seek legal advice swiftly and act immediately to ensure the best chance of your child’s return.
Abduction to a Non-Hague country
Tracing and returning a child from a non-Hague Convention country is more difficult since there may be very little in the way of protocol to assist you.
As in all cases of parental child abduction you must first contact the police, an experienced family solicitor and Reunite. In addition to this you should contact the Child Abduction Section of the Foreign & Commonwealth Office on 0207 008 0878 (office hours) or 0207 008 1500 (out of office hours). They can tell you whether the country your child has been taken to is within the Hague Convention or not and advise you further.
Where a child has been taken to a non-Hague Convention country, you must apply for custody and permission to bring your child home in the overseas court rather than in your country of residence although this can depend on the case circumstances and the UK wardship proceedings can sometimes assist. The Foreign Office can provide you with some assistance but cannot locate the child if you do not know their whereabouts, assist in any illegal efforts to rescue the child or interfere with the legal system of another country.
Prevention is better than cure, especially in the case of children being taken to non-Hague convention countries.
Reunite, the leading UK charity specialising in international parental child abduction, provides advice, information and support to parents, family members and guardians who have had a child abducted or who fear child abduction. It also provides advice to parents who may have abducted their child as well as advising on international contact issues. Reunite has a comprehensive prevention pack available to download from their website.
Immediate risk of abduction
If you have reason to believe one or more of your children may be in immediate danger of being abducted by their other parent there are measures you can take to prevent this happening.
It is important to act quickly and to seek immediate advice from a specialist family lawyer.
A specialist family lawyer can help you obtain a court order – like a Residence Order or Prohibited Steps Order under the Children Act 1989, which can determine which parent will primarily look after a child and should also help to stop your child being taken out of the country without your prior permission.
Reunite offers the following advice to parents who suspect their former partner will attempt to abduct their child.
• Do not delay – seek immediate advice from a family lawyer.
• Write to the UK Passport Service – ask them not to grant your child a passport without your permission (this is only possible where you have got an order from the court in certain circumstances). The Passport Service has no power to ask for a passport to be surrendered if it has already been issued, but they can notify you if a passport has been applied for, which may then alert you to taking further steps.
• Contact the Police – if they are convinced there is a real threat they can issue a ‘port alert’ to alert possible points of departure in the UK. How effective this will be depends on how much information you can supply them with – make sure that you have available recent photos of your child and the other parent which can be circulated. If you have details of which port – airport or sea port for example – your child is likely to travel through, that will help the police focus their efforts.
Fear of abduction in the next 48 hours
If you consider that there is a very serious threat that your child or children will be abducted in the next 48 hours you should take the following steps:
• Contact the Police immediately
• Contact Reunite on 0116 2556 234
• Contact a Specialist Family Solicitor
• Contact the International Child Abduction and Contact Unit (ICACU) on 020 7911 7045
• Contact IPS Passport Advice Line on 0300 222 000
What if your child has already been taken?
There are legal procedures in place to ensure that the child is returned to their country of residence, but how long it will take will depend on the country concerned, the circumstances of the case and whether the child can be traced.
It is important to establish as soon as possible what your parental rights are under the local law of the country to which your child has been taken. You should obtain urgent legal advice about the laws and practice for the country concerned and the position regarding legal aid.
How to get your child back
In cases where mediation is a possibility, Reunite offers a comprehensive specialist mediation service to help parents reach a workable and realistic solution without the need for costly courtroom battles.
Where mediation is not possible, the chances of getting your child back vary according to which country your child has been taken to and your relationship with the other parent.
Time is precious in any parental abduction case and it is therefore essential that you contact a specialist family solicitor immediately. They can help you obtain the necessary legal orders as quickly and efficiently as possible and put you in touch with organisations who can advise you in the more complex international cases.
How long will it take?
How long it will take will depend on the country concerned, the circumstances of the case and whether the child can be traced. Abductions heard under the Hague Convention should be heard quickly.
Most abduction cases involving another European country should take no more than six weeks from lodging of an application to delivery of judgement.
It is important to make your application within one year of the child’s abduction and as quickly as possible since this greatly increases your chances of the child’s return. If it is left longer than this, there is a possibility the courts may consider whether the welfare of the child would be unsettled by another move, albeit to their normal country of residence. In countries outside of the Hague Convention it is more difficult to determine a time frame but again, it is essential that you act immediately for the best chances of a return.
How much will it cost?
Legal aid may be available subject to means testing but is automatically available if you have had a child removed from another country to this jurisdiction and application for return is made through the International Child Abduction and Contact Unit (ICACU).
You can ask your solicitor for advice on how to apply. Expenses incurred when returning the child are not covered but you may request that an order for travel costs be made against the person who has removed/retained the child. The ICACU can provide parents with information about legal costs in specific countries.