Under UK law, if one parent moves a child across an international border without the consent of the other parent or despite a court order forbidding the removal of the child from the UK, they are abducting the child.
I thought I would start this article with this basic fact of law, because when one talks about child abduction, people always think of tragic cases such as Madeline McCann and Elizabeth Smart. However, these types of child abductions are (thankfully) extremely rare. Cases involving the wrongful removal of a child from the UK are much more common.
Preventing child abduction in England and Wales
Most parents who contact me still have their children with them in the UK. However, the other parent is a foreign national and they are terrified that they will attempt to take the child back to his or her home country.
If you are living under the shadow of, “I will take the children to (insert name of country) and you will never see them again”, there are proactive steps you can take to prevent such an event ever taking place.
These steps include:
• Document a clear description of the child (or children) and the person you believe may try and remove them from the UK without your permission. Get fingerprints of the child, take recent photographs, make sure you have copies of their birth certificate and any relevant court orders.
• Contact a solicitor and inform your local police. The police will assess whether an abduction is ‘real and imminent’. If they believe it is, then they will issue an All Ports Warning, and put the child on the Child Abduction List (children remain on this list for 28 days).
• Your solicitor can obtain a Prohibited Steps Order (PSO) under section 8 of the Children Act 1989. A PSO provides that a specific step that could be taken by a parent when meeting their parental responsibility for a child shall not be taken by any person without the consent of the court. To prevent a possible child abduction, a PSO can state that the child in question cannot be issued a passport without the consent of the court.
• If your child already has a passport, then hide it in a safe place. If they are named on the passport of the possible abductor, then your solicitor can apply to the court to have the possible abductor’s passport surrendered.
• In appropriate family cases, the court may make an order for the electronic tagging of a parent. Such an order would ordinarily be made only with the consent of the parent to be tagged or as a condition to a contact order. This solution was recently applied by a senior family court judge in two cases where local authorities feared there was a real risk of children being removed from the UK by one of their parents and taken across the Turkish border to join ISIS in Syria.
What to do if your child has been abducted
The Child Abduction Act 1984 makes it a criminal offence for anyone “connected with” a child under the age of 16 to “take or send” that child out of the UK without the appropriate consent.
The steps you can take depend on whether your child has been taken to a country which is a signatory to the Hague Convention. You can view the list of countries at www.hcch.net/en/states/hcch-members.
Hague Convention cases
Left-behind parents from countries that are signatories to the Hague Convention on Civil International Aspects of Child Abduction 1980 (the Hague Convention) can make an application under that Convention seeking a return of the abducted child back to the child’s home country. If the abduction is from an EU country (save for Denmark) Brussels II bis also applies and prevails over the Hague Convention. Brussels II bis underpins the Hague Convention and provides that European child abduction cases must be decided within six weeks of the application being lodged.
Non –Hague Convention Cases
In cases where the child has been taken to a country which is not a signatory to the Hague Convention, then your solicitor will liaise with the Foreign and Commonwealth Office (FCO) to take steps to have the child returned. For the FCO to assist the child must be a British Citizen.
On request the FCO can arrange a consular visit (sometimes known as a welfare check) to meet the child and report back on any issues of concern but a visit can only be made with the consent of the abducting parent.
Egypt and Pakistan
Bilateral agreements are in place with Pakistan and Egypt to deal with child abduction cases concerning these countries.
In cases involving Pakistan and Egypt, once return orders have been obtained from the High Court, the applicant’s solicitors should send all details of the case and copies of applications and orders to the office of the Head of International Family Justice at the Royal Courts of Justice who will then liaise with the counterpart’s office in Pakistan or Egypt, providing details of the return orders made and requesting a return of the child.
R (on the application of Nicolaou v Redbridge Magistrates’ Court) and The Law Commission recommendations on child abduction.
In 2012 a glaring loophole in the way the Child Abduction Act 1984 inter-acts with the Hague Convention was exposed in the case of Nicolaou v Redbridge Magistrates’ Court.
The case concerned a child who had been kept in Cyprus by his father for a number of years, despite a court order which only permitted a trip lasting three weeks. Hague Convention proceedings found that the child had been wrongfully retained and an order for his immediate return was granted. The father took the child into hiding to avoid enforcement of this order. A warrant was issued for the father’s arrest, upon which a European Arrest Warrant requesting his extradition was based. However, the domestic warrant was quashed by the High Court in the UK, as it was held that the father’s act of retaining the child, did not come within the definition of section 1 of the 1984 Act and hence the crime had not been committed.
To rectify this the Law Commission has recommended the following amendments be made to child abduction legislation in the UK.
1. Create a statutory offence of kidnapping which is clearer and simpler than current law based on the use or threat of force to take or move the victim.
2. Replace the offence of false imprisonment with a statutory offence of unlawful detention.
3. Increase the maximum sentence for offences under sections 1 and 2 of the Child Abduction Act 1984 (CAA 1984) to 14 years’ imprisonment (from seven).
4. Criminalise child retention by parents or connected persons by amending section 1 of the CAA 1984.
The best step a parent can take with regards to child abduction is to prevent the possibility of it happening in the first place. Although a Statement of Arrangements for Children is no longer required to obtain a divorce, by having a negotiated agreement which has been checked by a legal professional in place, you have a starting point to refer to if changes in circumstances affect your trust and feelings towards the other parent.
If you believe the abduction of your child is imminent, contact the police and an experienced family law solicitor immediately.
Sultan Lloyd Solicitors have the experience and expertise required to successfully advise clients on child abduction, the Hague Convention and all other child arrangement matters. To find out how we can help you, please call our Birmingham office on 0121 222 7643 to make an appointment with one of our family law team.