Child abduction explained - Family Law Partners

Child abduction explained

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What is child abduction?

It is the unauthorised removal of a child from one of their parents and/or from the country where they normally live by either parent.

Is it a criminal or a civil issue?

Child abduction is a matter for the civil courts and in some circumstances, it can also be a criminal offence. If the removal is internal (i.e. the child has been removed from one parent but has not been taken out of the country) then it is not a criminal issue. However, if the child has been taken out of the country without the left-behind parent’s consent, then this is also a criminal offence.

Does the child need to be taken out of the country in order for it to be classed as an abduction?

No. It is still classed as an abduction but it will not automatically be a criminal matter if the child has not left England and Wales (n.b. the Irish and Scottish court systems have their own rules and procedure). You may find that the police are unwilling to assist you, where a child remains in the country with one of their parents (but the removal is not one you consented to).

That said, if you are aware that the abducting parent has booked a flight or intends to travel internationally with the child, you can and should take urgent steps to prevent the international travel (see below).

If a child has been removed from your care without your consent but remains in the country, then you will need to make an urgent application to the family court for ‘peremptory return’ of the child.

Cases such as these can be referred to as either:

  1. wrongful removals (where a parent has interfered with a child’s normal routine and removed them away from the parent who should have had care of them at that time); or
  2. wrongful retentions (where a parent has ‘held onto a child’ for longer than was agreed with the other parent).

Parents who are dealing with an internal removal need to bring their cases to court quickly, as the removing parent will often try to argue that the other parent consented to the change in arrangements, seek to register the child in a new school near to them and settle them into a new routine quickly so that by the time the matter comes to court, they can argue that it is better for the child to remain with them in their current environment. As such, an application needs to be brought by the ‘left-behind parent’ within 48 hours so that the court can ensure the following:

  1. the matter is sufficiently serious that the ‘left-behind parent’ has taken immediate action to secure the return of the child; and
  2. the child has not already settled into an alternative routine (i.e. started a new school).

In the event that they have settled into a new routine, the court will need to consider whether it is in the best interests of the child for them to be additionally disrupted. Therefore, the court may not make a return order when the matter is heard. Instead, a second hearing may be directed and for there to be further investigation by court advisors such as CAFCASS into what the best arrangements are for the child long-term.

What do I need to ask the court to do?

You may need to seek an urgent or out-of-hours hearing to obtain orders for:

  1. surrender of the child’s passport(s);
  2. prohibited steps orders to stop the intended travel;
  3. port alert (notifying travel hubs such as airports / other points of departure not to permit the child to travel); and/or
  4. an application for the police to ‘search and find’ if you cannot locate the child;
  5. disclosure orders that family members must disclose the whereabouts of the child.

It may also be necessary to seek a ‘without notice’ hearing or ‘abridged notice’, which means that you would not give the abducting parent any notice that you are going to court (or only a few hour’s notice). They would therefore only get told about the hearing a few hours before (or after the event when a protective order has been made), so that there is little (or no) opportunity for them to leave the country with the child before the hearing.

If my child has already left the country with the other parent, what can I do about it?

  1. Don’t delay – any delay will prolong the period that you are without your child and, if you leave it for a long period of time, this could be interpreted as consent.
  2. Contact the police, ask them to set up a port alert and to set up a crime number;
  3. Speak to a specialist solicitor and find out your options – organisations such as the International Child Abduction and Contact Unit (ICACU) and Reunite can also assist (see below).

You will be seeking a ‘summary return’ of the child, which is a simpler process if the country receiving the child is party to the 1980 Hague Convention on Child Abduction (there is a set procedure for return which every contracting state has agreed to conform with). If this is the case, you should immediately contact the ICACU. However, if the country is not party to the Hague Convention on Child Abduction, then the process is less straightforward and you will need to apply to court for your child to be made a ward of the court, so that the court can make orders for the child to be returned. You may also need to consider making an application in the country where the child is staying for them to be returned to your care. The Foreign Office will be able to help you coordinate this and find an appropriate law firm in the receiving country.

If I am the abducting parent, but I have good reason, what shall I do?

There are several reasons why you might be considering leaving the country with your child. Before you do this, seek specialist advice in the country where you and the child are currently living. If you have already left, it is crucial to address the situation quickly (especially if you are fleeing from domestic violence as, in rare cases, you may have a legitimate excuse to remain). You should seek specialist advice as soon as possible.

Hattie Gibson is a family lawyer based in Brighton and London, who specialises in child abduction and internal/international relocation cases. 

 

 

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