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Child Abduction

Is it easier to oppose and defend a return to a non-Hague country?

Generally yes.­ The English courts’ obligation is not then to secure the immediate return of the child, the test of the Hague Convention, but look at the welfare of the child.­ English courts will be more prepared to consider long-term issues, i.e. who is the best parent to look after the child and care for the child and in which country.­ It is often beneficial for your lawyer to work with a specialist lawyer in the other country to ascertain what would happen if the child were to be returned.

What if I took our abducted child to another country but were then to come back to this country and leave our child abroad.­ How could I be made to bring our child back to this country?

You, your friends and relatives in England would probably be ordered to attend Court to disclose the child’s whereabouts.­ Your solicitors in England may be forced to disclose your whereabouts or even information you had given to them.­ The English court may make a Court Order, communicated immediately to the courts and governments of the other country, for the child to be immediately returned to this country.­ A Court can also commit a parent or other relative to prison until a child has been returned.­ The Court has very wide powers to impose penalties on anyone who withholds information that may lead to the disclosure of a child’s whereabouts.­ This may include financial bonds.­ The English courts co-operate extensively with the courts of other countries in cases of missing and abducted children.

Surely, no one would be able to find out where I was with my child?

The Court can make very powerful orders when a child is missing.­ It is of paramount importance that the child is located quickly.­ This includes:­

  • orders against telephone companies to locate the address a telephone is used by an alleged abductor or the area from which mobile calls are made.
  • orders for properties or other assets to be seized and perhaps even to be sold and for the money to be placed in an account to enable the other parent to utilise the money as a fighting fund for Court proceedings in this country or abroad for the location and safe return of the child.
  • orders against banks to freeze accounts.
  • orders against airline companies and ferry companies to disclose travel records.
  • orders against friends and relatives to attend court to disclose whereabouts of parent and child.
  • orders against internet companies to disclose the confidential IP address that would detail in which country an abductor is living and/or e-mail traffic.
  • orders against lawyers to disclose whereabouts and to produce files for inspection by the court; this is a rare example of the courts having the power to overcome lawyer client confidentiality.
  • orders to search a home and seize personal possessions that may give clues as to where the alleged abductor is living.
  • orders against travel agencies to disclose all travel records that they have on file.
  • orders against hotels to disclose details.
  • orders against health authorities and medical practitioners to disclose any treatment given.
  • orders against local authorities and welfare benefit offices.

The above orders are only an example.­ This list is not exhaustive.­ Courts view the abduction of children and failure to disclose whereabouts very seriously indeed and use all available powers.­

Interpol can also be asked to intervene.­ This could eventually lead to extradition proceedings resulting in you and your child being forced to leave the country where you are living.­ This could result in your child being separated from you either in the country where you are living or on your return.­ Criminal proceedings are then likely.­

I am anxious that my child will be abducted.­ What can I do to reduce the risk?

First, this is a reasonable fear for many parents in international families.­ Sadly abduction does occur with adverse, sometimes long term consequences for the child and parent.­ 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:

  • Make sure you or someone known to the child always collects from school and other hand over arrangements with the other parent are strictly adhered to.
  • Have to hand and in advance detailed description and information, up to date and digital photographs and documents (e.g. birth certificate, copy passport) concerning the child to help trace the child; a lawyer can recommend a list.
  • Keep the child’s passport in a safe place.
  • Have to hand a list of telephone numbers of the police and others such as your lawyer.
  • Obtain a long-term prohibited steps court order to prevent the child being taken out of England or Wales or away from the care of the primary “residential” parent.
  • Obtain the other parent’s passport during contact visits.
  • Obtain the fingerprinting form provided by Reunite.
  • Obtain a ports alert order if the risk of abduction is imminent i.e. under way, to warn airports etc.
  • Tell the school and others about your anxiety of an abduction so they are on alert.
  • If the child is old enough and mature enough, and with considerable care, tell the child to be very cautious and ask for help if taken away by the other parent.­ Ensure the child (and school) knows who, and who will not, be collecting the child from school or other activities.­

I am the parent with primary care of our child and moved abroad to get away from a bad situation.­ I now find I am accused of abduction and risk criminal proceedings.­ It seems so unfair.

A lot has changed since the Hague Convention was first introduced.­ It was then rightly intended to stop the non-resident parent, perhaps frustrated at the lack of contact, from snatching the child.­ It worked well and appropriately.­ However over the years the abducting parent has become increasingly the primary “residential” parent, perhaps feeling isolated in another country which is perhaps the country of the other parent, perhaps unsupported financially, without family nearby, perhaps badly treated with domestic violence, and being unable in reality to apply to relocate.­ Such primary residential parents then take a child permanently abroad, often being unaware of the seriousness of doing so or indeed without even knowing of the need for permission.­ Having done so, they then find that the full panoply of international law, courts, police, criminal sanctions are against them with an immediate return to the country from which they fled, often feeling, and actually being, in a worse situation than they were before they left.­

The appropriate response is not to abduct or condone the abduction but to obtain permission or a court order to relocate.­ However there are very different criteria for relocation across the world.­ This situation needs realistic appraisal.­ It can often work unfairly.­ Some countries are very strict and may not allow relocation.­

Equally there are still, sadly, too many child abductions away from the primary residential parent, especially to non-Hague convention countries.­ Sometimes the child goes missing altogether or for many years.­ Sometimes the courts of the country to which the child has been abducted will not assist in any return and perhaps even transfer custody to the other parent, the national, often the father.­ Some parents have had to take drastic and dramatic steps to recover their children, even after many years apart.­ Genuine child abduction is still a major problem.­ Many countries are not doing enough or anything to secure the return of abducted children.­

Is it true that I will commit a criminal offence if I take my child out of the country or keep the child in another country without the consent of the other parent?

Yes.­ A parent cannot make a unilateral decision to take a child out of a country or to keep a child in another country beyond an agreed period without the other parent’s consent.­ To do so is a child abduction which is a criminal offence.­ The matter can be referred to the police.­ Being found guilty carries risk of a prison sentence.

There is also a risk that your child may be taken from you and handed to the other parent or to another suitable relative until the possible return of the child and/or future care has been resolved.­ If there is no suitable adult to look after the child, as a last resort the local authority may be asked to take the child into care although this is rare.­

Upon your return to the child’s country of residence, the police may take passports and other travel documents from you to prevent the risk of further abductions.­ These will not normally be returned until the arrangements for the future care of your child have been resolved.­

It is irrelevant if you are the parent with whom the child mainly lives, perhaps solely lives and/or you are returning to your home country and/or the other parent’s physical or financial behaviour towards you is making your life intolerable.­ Return of the child will still be ordered although safeguards for you and your child will normally be put in place for you on your return.­

So what is child abduction?­

It arises in one of two ways.­ First, taking a child abroad without the permission of the other parent (and anyone else with parental responsibility).­ This is known as “wrongful removal”.­ Secondly if you had permission to take a child abroad for a period of time e.g. a holiday, retaining that child abroad at the end of the agreed period.­ This is known as “wrongful retention” which is treated the same as wrongful removal.­

Child abduction proceedings in England for the return of a child abducted here are always in the High Court, dealt with by very experienced, specialist judges and with the parent whose child has been abducted being legally represented, often free of charge, by highly specialist and effective lawyers.­

What is the Hague Convention?­

It is a worldwide agreement entered into by about 80 countries with the intention to secure the fast return of abducted children to the country from which they have been abducted.­ Governments, police and courts work together very closely, including between countries.­ Often free legal representation is available to the parent whose child has been abducted, irrespective of their means and financial circumstances.­ The courts of the country to which the child has been abducted should not normally deal with issues of residence and contact, save for interim arrangements and other protections.­ Their concern is the early return of the child.­ There are only narrow defences to a Hague Convention abduction and they rarely succeed.­

Within Europe, the procedures and timetables are even tighter and more vigorously enforced with less opportunity to oppose a return order.­ This law is known as Brussels II.­ If a child is not returned, the courts of the country from which the child was taken can still make an order, known as a “trumping order”, requiring the child’s return.­ This order takes effect across Europe.­

If my child has been abducted to England from a Hague convention country, can I approach any English lawyer to act for me?

Yes but that lawyer will then need permission from the Ministry of Justice to do so free of charge under the Hague Convention.­ Normally the Ministry of Justice only instruct lawyers on a specialist panel who will be able to represent you free of charge.­ International children work, and especially child abduction work, is a specialisation and requires special expertise.­

If you are defending the case as an alleged abductor, you can appoint a lawyer of your choice but you will not receive automatic legal aid.­ You can apply for legal aid in the normal way, based on means and merits tests.­

What are the defences to a Hague convention child abduction?

A defence to a child abduction can succeed but it is rare and requires good legal representation from a specialist.­

An abduction does not occur if the other parent acquiesced in (consented to) the move, either at the time of the removal/retention or subsequently.­ Sometimes there is an argument about acquiescence and to what the other parent may have been actually agreeing.­ This is why it is a good reason to ensure that any agreements for a child to go abroad, on holiday or permanently, are put in writing and signed by both parents after independent legal advice, perhaps with a financial bond to ensure any agreed return.­

The child’s return will not be ordered if there would be a grave risk of physical or psychological harm or would place a child in an intolerable situation.­ This is a high burden.­ Any anxieties about domestic violence or other lifestyle issues can be overcome by protective assurances enforceable in the courts of the country to which the child is to be returned.­ The risk must not arise from the effect of the abduction itself.­

The child may object to returning but the court will want to be satisfied about the child’s reasons, maturity, understanding and independence from what a parent may have said.­

A defence can arise if the child has been settled in his new environment for 12 months.­ However this is 12 months from knowledge of the child’s whereabouts by the other parent.­ It does not arise if the abducting parent and child were permanently on the move, fleeing detection.­

The return will not be ordered if the child is 16 years of age although if there are younger siblings being returned, the court takes account of the fact that children should not normally be split up.­

There is a defence if the parent seeking the return of the child has not been exercising so-called “rights of custody” before the removal/retention.­ This is often when a parent has had no active, meaningful involvement in the child’s life before the abduction.­

What happens if our child has been abducted to a country which is not a signatory to the Hague convention?

There are unfortunately still many countries which are not signatories to the Hague Convention.­ Some non-signatory countries actively cooperate as if they are signatories.­ Some have entered into bilateral arrangements with England similar to the Hague Convention such as Pakistan and Egypt.­ However a number of countries do not co-operate fully to secure the return of an abducted child.­ Very good, experienced and specialist legal advice and representation is needed and must be sought quickly.­ English specialist lawyers often work closely with lawyers in the country to which the child has been taken.­ Proceedings in England such as wardship can sometimes assist to encourage the courts of the other country to order a return from abroad.­ Other steps can be taken e.g. seizing assets belonging to the abducting parent.­

I am anxious about what will happen if I am ordered back to the country from which I abducted our child originally.

You yourself will not be ordered to return: only your child.­ Of course you will expect and want to go as well.­ The Court should be asked to ensure that protective measures are put in place, known as “safe harbour orders”, so that you and your child return to a safe place and free from criminal or civil prosecution.­ The Court may provide that you are paid maintenance and that you have somewhere to live until the long term issues are determined by the Court.­ Without these safeguards in place, a court may not order a return.­

I want to oppose an order for return of my child, even if I may have abducted the child.­ What should I do?

First, be realistic and admit the abduction, even if you personally consider you have done nothing wrong.­ Take legal advice before you make any admissions.­

Secondly be realistic with your lawyer in considering prospects of defending proceedings.­ Unlike child relocation applications where defending can result in improved contact on the relocation being allowed, defending child abduction proceedings rarely has any impact on what may happen after the child’s return.­ Indeed, defending can make a court more anxious to secure a quick return.­ Consider the defences carefully.­ Many reported cases depend on particular facts.­ Does your case possibly come within any of the defences?­

If an opposition and defence is unlikely to succeed, be realistic and put resources and energies into securing the best position on return.­ Seek assurances about personal safety, no criminal prosecution, provision of accommodation and perhaps financial support (so-called “safe harbour orders”), commitment to remaining the primary residential parent and commitment on any issues concerning the child to be litigated promptly in the courts of the other country.­ If any of this may be ineffectual or suspect, this may be a good reason to be able to oppose a return.­

Consider the benefits of mediation in looking at wider issues surrounding the abduction and future care of the child.­
 

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