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Child Abduction
Taking a child abroad without the permission of the other parent (and those with parental responsibility), where the other parent has contact or custody rights, is classified as a child abduction.
Retaining a child abroad, beyond the period for which permission had been given, is classified as a child abduction.
It is a criminal offence to remove a child from the jurisdiction without the consent of his parents (and those with parental responsibility). It carries a penalty of imprisonment. In most cases, someone who has abducted a child is guaranteed a ‘safe harbour’ free from prosecution when that parent returns to this jurisdiction but an increasing number prosecutions are taking place. There is a real risk of criminal proceedings.
It is fundamental in the first instance to ascertain if the child has been taken to a Hague Convention country or to a non Hague Convention country. The procedure is very different. The Hague Convention countries are on the link on the information pages
In any event, practical steps should always be taken by lawyers and parents to reduce the risk of an abduction.
The Hague Convention is an international Convention which has at present been signed by 70 countries. Each country agrees that it will not enter into a full investigation of custody, contact etc in respect of the child which will be left to the Court in the Country where the child was last Habitually Resident and instead merely secure return.
In England a parent from whom a child has been abducted is awarded public funding as of right. It is not means tested. The Central Authorities will then appoint an experienced panel solicitor to represent them. iFLG is regularly instructed and please contact us and we can liaise with the Central Authority for you. They require completion of a questionnaire on our information pages. Please fill in and send to us
The defences very rarely succeed in England as the threshold criteria is very high. The defences that are usually used are:
- Consent or acquiescence by left behind parent.
- Grave risk of physical of psychological harm/intolerable situation of return.
- Child’s objections
Where there has been an abduction to or a wrongful retention of a child in a European Union country, the Hague Convention must now be considered in the light of Brussels II revised. A link to its accompanying Practice Guide is on our links page. Details of the new Brussels II bis law is on our information pages.
BII revised has strengthened the likelihood of a return. The Practice Guide states that BII revised aims at deterring child abduction and when it occurs, to ensure the prompt return to the member state of origin.
Outside Europe, there is no similar mechanism to strengthen the Hague Convention as there is with Brussels II revised. If a country where a child has been taken decides not to return a child, there is nothing the other country can do to change that decision unless there were grounds for an appeal in the country concerned. The procedure to be followed is the same as for an abduction or wrongful retention in a European member state in that the ‘left behind’ parent contacts the Central Authority and the Hague Convention proceedings will be free of charge.
When a child has been abducted to a non Hague country, the English courts usually follow the principles and defences set out in the Hague Convention. However the procedure is very different initially. No Central Authority is involved and there is no automatic public funding for the parent from whom the child has been abducted. More often than not, these cases will involve also proceedings in the Country where the child has been taken which can be expensive and complex. Specialists advice should be urgently taken
England has entered into special agreements with Pakistan, the Anglo Pakistan protocol, and with Egypt, the Cairo Declaration. The intention is to introduce the principles and procedures of the Hague convention two countries which are not signatories. The hope is that countries which have objections to the Hague Convention will nevertheless cooperate with global child abduction as if according to Hague. The Anglo Pakistan protocol has already had some successes.
An added regime of preventative orders available is known as all ports warning. This is a system set up to alert air and sea ports, as well as the Channel Tunnel, to prevent children leaving the jurisdiction.
Applications such as these can require a considerable amount of work to be undertaken by a solicitor over a very short period of time. Such applications should therefore only be undertaken with care and when there is a good knowledge of the action to be taken and the relevant contacts.
The Law Society Family law protocol (2nd edition) at para 3.4.2 states that
‘Solicitors must recognise that international child abduction law is a rapidly developing highly specialist area of law and that specialist advise is essential for clients. Before considering whether to represent a client in such a case (including a child who is the subject of abduction proceedings) solicitors should consider whether they have the necessary specialist knowledge and expertise, and where appropriate, the client should be referred to an appropriate specialist firm’………
‘The consequence of bad or tardy advice can be devastating for the client, and may result in a substantial damages claim for negligence’
iFLG is satisfied, as is the Legal Services Commission and the UK Central Authority, that we have the specialist knowledge and expertise specified by the Law Society.
Finally some self help action can be taken to minimise the risk of an abduction. See the information pages for details
iFLG works closely with reunite International Child Abduction Centre, the UK charity specialising in international parental child abduction. The objects of reunite are to provide advice, information and support to parents, family members and guardians whose children have been abducted or who fear abduction. Reunite will also provide advice and information to parents who may have abducted their children to the UK, and also assists and advises in international contact issues and cases of “permission to remove”. See links page
