Parental child abduction
This article deals with the most common form of child abduction – parental child abduction.
A parent is not permitted to make a unilateral decision to relocate with their child without the other parent’s consent.
Parental child abduction takes two forms:
- Wrongful removal – when a parent makes a unilateral decision to take a child abroad without the consent of the other parent; and
- Wrongful retention – when a parent seeks to retain a child abroad beyond the time that had been agreed with the other parent.
Parental abduction is a troubling global phenomenon that affects a large number of families each year.
Please bear in mind that you are not permitted to abduct your child just because you are seeking to take your child to a country that you consider ‘home’, or you are the parent with whom the child lives, or the other parent is making your life intolerable.
Many parents will be surprised to learn that child abduction is a criminal offence in a number of countries, including England and Wales. A parent is not permitted to make a unilateral decision to relocate with their child without the other parent’s consent. The offence of parental child abduction carries a maximum penalty of 7 years’ imprisonment in England and Wales.
The 1980 Hague Convention
The 1980 Hague Convention is an international convention (treaty) involving over 95 countries. Its purpose is to secure the speedy return of abducted children. The courts of the country to which the child has been abducted should not make welfare decisions pending the outcome of the application and the application should be determined ideally within 6 weeks.
There are very few available defences to an application for a child’s summary return pursuant to the 1980 Hague Convention.
- A parent can seek to defend an application on the basis that the other parent consented to the move, either at the time of the removal/retention or subsequently.
- A parent can seek to defend an application on the basis there would be a grave risk of physical or psychological harm or it would place a child in an intolerable situation if a return was ordered. This is a high threshold. Practical matters can normally be overcome and even anxieties about domestic violence and the risk posed by the left behind parent can normally be overcome by suitable protective measures.
- The child themselves may object to returning but the court can still direct the return of a child even if they are found to object; and
- Finally, a defence can arise if the child has been settled in their new environment for 12 months. A parent applying to have a child returned should therefore ensure they make an application before the child has been in the other country for 12 months.
The 1980 Hague Convention applies to children who are less than 16 years old.
Children abducted to a country which is not a signatory to the 1980 Hague Convention
There are still many countries that are not yet signatories to the 1980 Hague Convention. Some non-signatory countries still cooperate in returning abducted children. Some countries have entered into bilateral arrangements. However, a number of countries do not co-operate in returning abducted children. Experienced and specialist legal advice and representation is always needed and must be sought as quickly as possible.
When the 1980 Hague Convention is not available to a parent (as their child has been taken from England and Wales to a non-Convention country) it is possible to ask the High Court to make the child a ward of the High Court (i.e. subject to the protection of the High Court) and then to request orders to assist or encourage the abducting parent or the courts of the other country to order the child’s return. This can even include the seizure of the abducting parent’s assets.
Preventing an abduction
Many parents fear that the other parent will remove their child to another country without their consent, or refuse to return them after a holiday. Threats by one parent to abduct a child should always be treated seriously. A number of steps can be taken to minimise the risk and they should be discussed with a specialist lawyer. The concerned parent should keep the child’s passport in a safe place and inform the child’s school and other relevant people, for example grandparents, about their anxiety so they are on alert. If the child is old enough and mature enough the parent may tell the child to ask for help if they are taken to an airport by the other parent etc. It is also helpful to ensure the child (and school) knows who, and who will not, be collecting the child from school or other activities.
If there is a real risk of abduction the parent should obtain a prohibited steps order from the court to prevent the child being taken out of England or Wales, and if the risk is real and imminent the court or police can implement a port alert, to warn airports, marine ports of the risk of a child’s removal.
What to do if your child is abducted
If your child has been abducted from a Hague Convention country, make contact with the relevant authority in the child’s home country, known as the “Central Authority” (often a department within the Ministry of Justice). They will then in turn contact the Central Authority in the country where the child has been taken who will appoint a lawyer who will assist you free of charge or put you in touch with a specialist lawyer who you would need to fund on a private basis. There is a small panel of specialist child abduction lawyers in England and Wales including The International Family Law Group LLP.
If your child has been abducted from a non-Hague Convention country, you should contact a specialist lawyer in the country they have been abducted to, either direct or through a lawyer in the country from which the child has been abducted.
The best way of rectifying abduction is speed. You should always act quickly and secure appropriate specialist legal advice as quickly as possible. Unfortunately, the 1980 Hague Convention is not a ‘magic wand‘ and there will sadly be instances when a request for a child’s return will be refused or delayed (for example when visas are required or in the event of an appeal) – prevention is therefore essential. The best way to prevent abduction is to maintain a good relationship with the other parent and always keep lines of communication open.
The contents of this article are for reference purposes only. They do not constitute legal advice and should not be relied on as such. Legal advice should always be sought for your specific circumstance.
Sponsored article from The International Family Law Group LLP
Marianna Michaelides is a solicitor at The International Family Law Group LLP and specialises in all matters concerning children including international parental child abduction and international relocation matters. Marianna can be contacted on +44 (0) 20 3178 5668 or marianna.michaelides@iflg.uk.com.
Marianna Michaelides
The International Family Law Group LLP
www.iflg.uk.com
© 28 July 2017
The International Family Law Group LLP is a specialist law firm, based in London, looking after international and national families. iFLG handles a plethora of financial and forum matters linked to a relationship breakdown and matters relating to children (child relocation, abduction, adoption, surrogacy, contact and residence issues). As accredited international family law specialists iFLG regularly receives instructions from foreign lawyers concerning matters in England and Wales. iFLG is also regularly instructed by ICACU (Central Authority for England and Wales) and we also provide expert evidence abroad in family cases.
