Information

Information About International Child Abduction
WHAT IS INTERNATIONAL CHILD ABDUCTION?
  • International child abduction occurs when children are removed from, or retained away from, the country where they live, without the consent of each of their parents or all holders of parental responsibility, or without a court order authorising their removal or retention.

 

  • Most commonly international parental child abduction occurs where one parent takes a child to another country without the other parent’s consent, or keeps a child in another country beyond the period agreed by the left-behind parent.
WHAT ARE THE LEGAL IMPLICATIONS OF INTERNATIONAL CHILD ABDUCTION?
  • In many countries, child abduction is a criminal offence.

 

  • There are also a number of civil remedies that can be brought when international child abduction occurs. A number of states have signed up to international legal instruments which can ensure the safe return of children to their home country. The most widely used is the Hague Convention on Civil Aspects of Child Abduction 1980 which is explained in greater detail below.

 

  • Additionally, all EU States (except Denmark) have signed up to the Council Regulation (EC) No 2201/2003(Brussels II Revised / Brussels IIa), which bolsters the terms of the 1980 Hague Convention and provides for the recognition and enforcement of orders concerning children across the European Union.

 

  • The 1996 Child Protection Convention has also been ratified by a large number of States, and like Brussels IIa can provide for the recognition and enforcement of orders concerning children and the jurisdictional rules that apply when a child has been wrongfully removed from their home country.

 

  • If you live in another country and your child has been brought to England & Wales without your consent, it may be possible for you to apply to the English court for your child to be made a Ward of Court and to be summarily returned to his or her home country.
WHAT CAN YOU DO IF YOU FEAR YOUR CHILD WILL BE ABDUCTED?
  • If you fear your child will be taken out of the country, you can contact the police who may be able to impose a “port alert” which will ensure that you are informed if an attempt is made to remove your child from the country. You should get legal advice as quickly as possible form a specialist lawyer as it may be possible to apply to court for an order which will prevent a wrongful removal.

 

  • In England and Wales, it may be possible to apply for a Prohibited Steps Order, or orders in Wardship to prevent an abduction.
WHAT CAN YOU DO IF YOU ARE ACCUSED OF INTERNATIONAL CHILD ABDUCTION?
  • It is important to get legal advice from a specialist lawyer as quickly as possible. The law relating to the international movement of children is complex and ever-changing, and it is important that you are aware of any potential defences and how they would work in practice.
HOW CAN YOU LAWFULLY MOVE YOUR CHILD TO ANOTHER COUNTRY?
  • If consent to moving your child to another country is not forthcoming, you should seek legal advice with a view to making an application to court for an order that there be permission for your child to relocate to another country. It may be possible for matters to be resolved through mediation, without having to go to court, and many of our members are qualified mediators as well as being specialist lawyers.
HOW CAN YOU SECURE CONTACT WITH YOUR CHILD WHO LIVES IN ANOTHER COUNTRY?
  • If your child is living in England and Wales and you are being prevented from having contact with him or her, you may, if you live in a country that is a signatory to the 1980 Hague Convention, submit an application under Article 21 of the Convention to secure the effective exercise of rights of access.

 

  • If you already have an order for contact which is not being complied with, it may, depending on the country in which it was made, be possible for that order to be registered and enforced in England and Wales
HOW DOES THE 1980 HAGUE CONVENTION WORK?
  • The United Kingdom and over 80 countries have both signed and ratified an international treaty called the Convention on the Civil Aspects of International Child Abduction, concluded on 25 October 1980 (colloquially known as the “Hague Convention”).

 

  • The purpose of the Convention was to ensure the prompt return of children who had been either abducted from their country of habitual residence or wrongfully retained in another contracting state.

 

  • The Hague Convention works on the principle of returning children aged under 16 years who are wrongfully removed or retained away from their country of habitual residence. The child’s nationality is irrelevant; the key is the child’s country of habitual residence which is usually the child’s home prior to the wrongful removal or retention.
WHAT ARE THE AIMS OF THE 1980 HAGUE CONVENTION?
  • Article 1(a) of the Hague Convention states that its object is “to secure the prompt return of children wrongfully removed or retained in any Contracting State”. The Hague Convention encourages the speedy disposal of applications. Article 2 says that contracting states must use “the most expeditious procedures available” and Article 11 widens this requirement to“Judicial or administrative authorities of Contracting States” and states that if a decision has not been reached within 6 weeks from the commencement of proceedings then the Applicant or either of the Central Authorities may request a statement of the reasons for the delay.
HOW DO HAGUE CONVENTION PROCEEDINGS WORK IN ENGLAND AND WALES?
  • The Courts of England and Wales take their obligations under the Convention very seriously and have a good record for adhering to the Convention and returning children when required. Ideally parents bring their application very speedily i.e. shortly after their child has been either wrongfully removed or wrongfully retained. Parents are sometimes ignorant of their rights under the Hague Convention and only bring an application once they have received specialist assistance which is sometimes a long time after the actual wrongful event took place.

 

  • Civil Child abduction proceedings brought under the Hague Convention are highly specialist proceedings which, unlike domestic Children proceedings, are not designed to consider the child’s long term best interests/welfare. Essentially the only function of Hague Convention proceedings is to consider the appropriate forum to consider the child’s welfare. Hague Convention proceedings are proceedings to decide jurisdiction. The Court does not consider, for example, who is the better parent, who the child should live with or anything of that nature as those are decisions that the Court that is found to have jurisdiction will determine. As a result, the Court has a narrow issue to decide and some things will simply not be relevant to the child abduction proceedings.

 

  • Most contested child abduction cases result in the English Court making an Order for the child’s return to the country from which they have been removed or retained. The Court is obliged to order the child’s return if the elements of abduction are established and an exception to the usual rule about a return is not made out.
WHO CAN SEEK A CHILD’S RETURN UNDER THE 1980 HAGUE CONVENTION?
  • In order to make an application for a child’s return under the Hague Convention, the applicant must have rights of custody i.e the right to veto the child’s removal/retention.

 

  • In England and Wales a parent will have rights of custody if they have Parental Responsibility (“PR”) for the child. A Mother automatically has PR. A Father has or will acquire PR if

 

    • (a) he is married to the Mother (at the time of the birth or subsequently),
    • (b) the child is born after 1 December 2003 and the Father attends with the Mother to register the child’s birth and he is named on the child’s birth certificate as the Father
    • (c) he and the mother make an agreement providing him with PR for the child
    • (d) the Court, on the Father’s application, orders that he should have PR for the child. A parent exercises rights of custody by exercising PR, i.e by being involved in the important decisions in relation to the child.
WHAT ARE THE DEFENCES TO AN APPLICATION UNDER THE HAGUE CONVENTION 1980?

There are very limited defences to a Hague Convention application and they are construed narrowly by the English Court.  They can be summarised as follows:

 

  1. Consent– Article 13 (a) – it is possible to defend a Hague Convention application if you are able to show that the left behind parent consented to the child’s removal to or retention in another country.

 

  1. Acquiescence– Article 13 (a) – it is possible to defend a Hague Convention application if you are able to show that the left behind parent subsequently acquiesced in the removal or retention – that is to say that the Applicant indicated by his/her words and/or actions after the wrongful event of that he/she did not seek to secure the child’s summary return. Acquiescence in Article 13 means looking at the subjective state of mind of the wronged parent and asking has he/she in fact consented to the continued presence of the child in the jurisdiction to which they have been abducted.

 

  1. Child’s objections– Article 13 – it is possible to seek to defend a Hague Convention application if the subject child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the subject child’s views. For this defence to be established, it is important for the Court to satisfy itself that the child has not been influenced by the abducting parent about their views.

 

  1. Grave Risk of Harm/Intolerability – Article 13 (b)– it is possible to raise a defence to a Hague Convention application if you are able to demonstrate that if you were to return a child to its state of habitual residence there would be a grave risk that the child would be exposed to physical or psychological harm or the child would otherwise be placed in an intolerable situation.

 

  1. Settlement– once a child has been removed to or been retained in another contracting state for more than 12 months, it is possible to argue that the child has become settled within the new state and therefore should not be returned. This defence can only be used if the child has been in the country in which they were removed or retained, for more than 12 months before the Hague Convention proceedings were issued. This defence cannot be used if the proceedings are issued within 12 months of the abduction.

 

The most commonly raised defence is Article 13(b)/intolerability defence but in the vast majority of cases the defence can be ameliorated by the left behind parent providing what is classed as a “safe haven” return package (protective measures). I.e. most of the things that parents consider intolerable about returning to the country of habitual residence can be ameliorated with the provision of appropriate housing, funding and other practical assistance by the left behind parent or contracting state until such time as things can be properly considered by the Courts of the child’s habitual residence.

 

If one of the above is satisfied, the court does not need to return a child to the home country but can do.