James Netto - Future Leader
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 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.
Not necessarily. In this country, it is only a criminal offence to take a child out of the country without the request permission. There is currently an inconsistency between the criminal and civil offence of child abduction in this country when the perpetrator is the child’s parent. Whereas the 1980 Hague Convention relates to both wrongful removal and wrongful retention of children, a criminal offence under s 1 of the Child Abduction Act 1984 is not committed when a parent lawfully removes a child from the UK but then retains the child beyond the agreed deadline. Accordingly only wrongful removals are a criminal offence in this country. If you commit a wrongful removal the matter can be referred to the police and parents are frequently prosecuted for this offence. Being found guilty carries a 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.
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.
It is a worldwide agreement entered into by over 100 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 welfare issues, 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 application.
Yes, but that lawyer will need permission from the English Central Authority (which is administered by ICACU) to do so free of charge. Normally ICACU 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.
The left behind parent must demonstrate that they had the right to be consulted about the child’s relocation, which is called a 'right of custody' and that the child has been wrongfully removed or retained from its country of habitual residence. If they can establish these preconditions and they have the right to request the child’s return, there are 5 key defences that can been raised. They are:
An abduction does not occur if the left behind parent consented to the move or subsequently acquiescenced to the child’s retention. There is often a disagreement about what was or wasn’t agreed and therefore it is useful for any agreement for a child to go abroad, on holiday or permanently, to be put in writing and signed by both parents.
The child’s return will not normally 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. Normally 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 maturity, understanding and independence.
A defence can arise if the child has been settled in his new environment for 12 months following the alleged wrongful removal or wrongful retention.
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 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.
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.
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/exceptions?
If a 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.
Generally yes. The English court does not have an obligation to return the child, and will therefore consider the welfare of the child more broadly. 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.
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.
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:
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.
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:
No. You must obtain the permission of the other parent and anyone else with custody rights before you take the child abroad permanently. If not, you will probably find yourself embroiled in child abduction proceedings.
If the other parent is not willing to give his or her permission, you must obtain permission from the Court. This will not be granted if the only reason for your wish to move to another country is, in reality, to prevent the child’s other parent from having regular contact with your child. Equally you may well be given permission to relocate by the court if the only real reason for the other parent’s refusal was to create difficulties for you as the primary residential parent.
Most often it is a finely balanced decision about relocation. These are some of the toughest, hardest and most emotional issues facing international families.
Experience has shown much success where the parties have the benefit of mediators experienced in child abduction issues, and where the mediation carries on in parallel to court proceedings which occur very fast for the possible return of the child. Outcomes may include agreements about future child arrangements beyond the central issue of the abduction itself. Similarly mediation works very well in relocation matters, when one parent wants to move abroad with a child and the other parent is opposed.
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