What can I do if my ex-partner has taken (or is planning to take) my child abroad – Part 1

Has my child been taken abroad unlawfully?

Taking, sending or retaining a child under the age of 16 abroad without permission is child abduction. Permission is required by all of those with Parental Responsibility for the child, or permission of the Court (to check whether you have Parental Responsibility for your child, see our blog containing information on Parental Responsibility here).

A Mother can take a child abroad without the Father’s permission if the Father does not have Parental Responsibility.

However, a person does not need permission from the other Parental Responsibility holder(s) to take or send a child abroad, where they have a Child Arrangements Order for a child to live with them (previously a ‘Residence Order’) provided the period abroad does not exceed 28 days.

Child abduction applies to the following two scenarios:

1. Taking a child abroad without permission of everyone with Parental Responsibility for the child. This is known as ‘wrongful removal’.
2. Retaining a child abroad without permission from everyone who has Parental Responsibility for the child at the end of an agreed period. This is known as ‘wrongful retention’.

Child abduction is a criminal offence in England and Wales and carries the risk of a prison sentence.

What can I do to get my child back home?

The action you can take to get your child home will largely depend on the country your child has been taken to.

The first thing to check is whether your child has been taken to, or retained, in a country which has joined one (or all) of the following Conventions:

1. The 1980 Hague Convention on Child Abduction. To check whether a particular country has signed the Convention, click here https://www.hcch.net/en/states/hcch-members).
2. Brussels IIa. This applies in all members of the European Union other than Denmark. It mirrors the Hague Convention to a large extent but the procedures and timetables for securing a child’s return are even tighter and more vigorously enforced with less opportunity to oppose a return.
3. The 1980 European Convention. Since Brussels IIa came into force on 1 March 2005 the European Convention only operates between the UK and Denmark and the UK and member of the Council of Europe that are not also Member States of the European Union.

These Conventions are basically international agreements, which operate to ensure the fast return of children to the country where they normally live. Countries that have joined the Conventions are known as ‘Contracting States’. The UK is currently a contracting State to all three Conventions.

Each Contracting State has a ‘Central Authority’, which is responsible for taking all appropriate steps to secure the child’s return. The Central Authority in England and Wales is the International Child Abduction and Contact Unit (ICACU).

If your child has been wrongfully taken to or retained in a Contracting State then an urgent application will need to be made to the ICACU for his / her return. It is vitally important that this application is made swiftly and without delay. Specialist legal advice will be needed.

The application for the return of the child will be dealt with by the Court in the Contracting State where your child has been taken to. The first step that Court in the Contracting State will normally take is to make very powerful Orders for the child to be located quickly and secured at a certain address until the case is finished. Normally the passports for the child and abducting parent will be confiscated.

Proceedings under the Conventions are ‘summary proceedings’ not ‘welfare based’ proceedings. This means that the Court in the country where the child has been taken will not normally deal with the question of where it is best for your child to live. The court will only deal with the question of whether your child has been wrongfully removed or retained. If it considers that there has been a wrongful removal or retention then in most cases it has to order the return of the child. The defences to an application under the Conventions are very limited / narrow and rarely succeed.

If your child is returned then it is possible that the abducting parent could make an application to the English Court for permission to relocate permanently to another country. This is known as a ‘leave to remove’ application.

What if my child has been taken to a non-contracting country?

Unfortunately, there are still many non-EU countries that have not joined the Hague Convention. Some of these countries have entered into bilateral arrangements with England, similar to the Hague Convention, such as Pakistan and Egypt.

However, a number of countries do not cooperate to fully secure the return of abducted children. If your child has been taken to one of these countries then it will be more difficult to secure their return home. Generally speaking if you cannot come to an agreement with the other parent, you will need to start legal proceedings directly in the country where your child has been abducted to. English specialist lawyers often work closely with lawyers in the country to which the child has been taken. Sometimes, obtaining orders in England such as a Wardship Order may encourage the Court in the other country to order a return from abroad. Other steps may also be appropriate, for example, applying for the other parent’s assets to be seized to encourage a return.

We have specialist expertise in the area of child abduction and can assist you with taking all necessary steps to secure the safe and return of your children.