At Lovell Chohan Solicitors we have Law Society Family Law Advance accredited solicitors who are accredited in the child abduction module, and are therefore able to assist you in this very specialist and complicated area of law.
Child abduction is the unlawful removal of a child from the child’s usual place of residence, and in the majority of cases the abduction is usually carried out by a parent. International travel, for most has become a way of life and is relatively cheap and this in its own has created a contribution to child abduction which now has the distinct international element. The main area of English Law dealing with child abduction is embodied in the Hague Convention. The Hague Convention is designed to ensure that the child is usually returned to the country which has been the child’s home and where issues about the child’s future can be decided. It therefore follows that under the Convention a child who has been abducted must always be sent home. The participating countries to the Convention usually enforce this as an agreement that their Courts will return an abducted child back to its home country, without going through a detailed and lengthy Court case. However in some unusual circumstances a child may not be returned to his or her home country and in this regard the Courts retain certain discretion.
The English Court will in almost all cases order the return of the child. In cases where a child has been abducted from a non-convention country English Courts will consider the welfare of the individual child and will only return the child to the original home country if it is in the best interests of the child.
A parent in England who is faced with trying to recover a child who has been abducted to a non-convention country will inevitable face lengthy and possibly expensive proceedings.
The Child Abduction Act 1984 makes it a criminal offence for a person connected with a child under the age of 16 years to take or send that child out of the UK without the appropriate consent. A person in whose favour a residence order is made may remove a child from the UK for a period of up to 28 days .The offence of Kidnap at Common Law, of a child under the age of 18 years, can also be committed by a parent. You should report any abduction to your local police station, and contact a specialist child abduction solicitor.
If you fear that your child might be abducted, then you and your solicitor should consider making an application to the court for either a Prohibited Steps order, Residence order and or a Parental Responsibility order under the Children Act 1989. It may also be prudent to obtain an injunction preventing the other parent from removing the child, or seeking that the child be made a ward of the High Court. Wardship imposes an automatic prohibition on taking the child out of the United Kingdom. Orders can, if necessary, be made without notice to the other side.
In addition, where there is a contact/access order in force, and it is feared that the child may be abducted by the person exercising contact, an application may be made for a variation of the order to provide for the contact to be supervised.
A wide range of orders may be made under the High Court's inherent jurisdiction with respect to children or within wardship proceedings, including "Seek and Find" orders, orders restraining persons from leaving the jurisdiction and requiring the surrender of passports.
In the Family Law Act 1986 there are powers to order disclosure of a child's whereabouts, to order the recovery of a child, to restrict the removal of a child from the United Kingdom and to require the surrender of any passport containing details of a child.
If it is feared that a child might not be returned from a visit abroad, then it is possible to ask the court to allow the visit only on condition that the person taking the child abroad lodge a sum of money in court, (a bond - or a charge on property) which will be forfeit if the child is not returned.
The United Kingdom is a party to the Hague Convention on the Civil Aspects of International Child Abduction, Council Regulation (EC) No 2201/2003 and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children.
The Lord Chancellor is designated by the Child Abduction and Custody Act 1985 as the Central Authority for England & Wales and Northern Ireland, in Scotland the Secretary of State is the Central Authority. The duties of the Central Authority in England & Wales are carried out by the International Child Abduction and Contact Unit (ICACU) which is the designated Central Authority for England & Wales. It is responsible for administering the work of the conventions under the administrative control of the Official Solicitor to the Supreme Court, an independent, quasi-judicial figure whose function is to give confidential advice to the judges, assist the court and represent the interests of those under legal disability. The ICACU is also the designated Central Authority under the Revised Brussels II Regulation, having been appointed in accordance with article 67 of the Regulation.
Scotland and Northern Ireland each have their own Central Authorities
Removing a child from the Jurisdiction of England and Wales.
Following divorce or separation one parent or the other may wish to move abroad with the child or children of the Family. In such cases it is always best to obtain permission from the other parent and the Courts to move to another country. As long as there are arrangements made for the child in the new country in relation to the child’s home education and welfare and there are arrangements in place for the child to have contact with the absent parent, then there is usually little difficulty in obtaining such permission, but each case of course will rest on its own individual merits. The Courts will generally take the following principles into account when considering any application to remove:
- There is no presumption in favour of the applicant parent
- The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight
- The practical side of the relocation proposals should be scrutinised with great care including the practical side of ensuring adequate contact to the other parent continuing
- The court needs to be satisfied that there is a genuine motivation for the move and not an intention to bring contact between the children and the other parent to an end
- The effect upon the applicant parent and the new family of the child of a refusal of leave is very important
- The effect upon the child of the denial of contact with the other parent and in some cases the wider family is very important and will require the court to analyse the current contribution of the non resident parent and wider family to the care of the child
- The opportunities for continuing contact between the child and the parent left behind may be very significant
- The child's welfare is paramount but in assessing the relocation application all relevant aspects of the welfare checklist must be analysed including where appropriate the wishes and feelings of the child
- The court should first consider with which parent the child should live, taking account of the plans of each parent as to where the family should live
- The more contact and involvement there is at the time of the application between the child and the non resident parent and the family, the less likely the application is to be granted
- The applicant will fail unless the plan is demonstrably detailed and well thought through. The plan should cover education, accommodation, childcare, employment, financial resources, immigration procedures and contact
- The stronger the evidence of a link to the country to which it is proposed that the family move the more unlikely the application is to be granted
- The existence of evidence showing that the applicant has been hostile to contact or denigrates the other parent or has made unsubstantiated allegations against them or flouted orders of the court will seriously undermine the applicants chance of success
- The stronger the evidence of distress to the applicant if the application is refused the more likely it is to be granted. Such evidence might include reports from psychiatric or psychological experts
- The closer the case comes to an appropriate categorisation as a ' lifestyle choice ' case the less likely the application is to be granted
- The child's vulnerabilities will be particularly inmportant. Such would include the impact of change, the resources within the proposed jurisdiction to provide services to the child and family and any other matters which go to the child's well-being
- The separation of siblings or half siblings will be highly significant and is likely to lead to a refusal except in unusual circumstances
- The existence of a legal framework in the other jurisdiction or other enforcement procedure before departure will assist the court to feel confident that contact will take place as envisaged at the time of dealing with the application
- Adverse or significantly different living conditions in the other country will not automatically lead to permission being refused.