Child abduction from the UK

At the end of 2018, the Foreign and Commonwealth Office (FCO) circulated information on the support available to people in cases of international parental child abduction, having provided assistance in 228 abduction cases that year. International parental child abduction is when one parent removes or keeps a child from the country they normally live in, without the consent of the other parent or in breach of a court order preventing their removal. Parents do not always realise that their actions could be classified as abduction or that abduction is a criminal offence.

The Hague Convention

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (1980 Hague Convention) is a multi-lateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The convention applies only to children under the age of 16, and currently there are 99 states party to the Hague convention.

If a child is abducted to a country that is a signatory to the Hague Convention, and if a claim of wrongful removal or retention is made within the first 12 months, the contracting state where the child is will usually return the child to their original country so that the court in that country can decide what should happen in the child's future. After the 12-month period, it is more difficult for the child to be returned as the child may be settled in their new environment.

A parent may find it difficult to rely on the Hague Convention if, for example, the child is considered habitually resident in the state where they have been taken; the parties were in agreement with the move; or the child does not want to return to their resident country. Article 13(b) of the 1980 Hague Convention states that a member state "is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation".

If a child is taken to a country that the UK does not operate the 1980 Hague Convention with, or the parent/s' application under the convention was refused, they can start legal proceedings in the courts overseas to have their court order recognised by a foreign court or to seek a new court order under the laws of that country. Or they can file for criminal charges against the abducting parent, although this could stall efforts to get the child back, and some countries do not regard parental child abduction as a criminal act.

Child abduction within the EU

Ongoing concerns have been raised about the potential impact of Brexit on the existing legal framework surrounding child abduction in the European Union (EU). There are approximately 1,800 cases of child abduction within the EU each year. Council Regulation No. 2201/2003, known to family lawyers in the UK as "Brussels II Revised" or "Brussels IIa", deals with, among many other things, child abduction cases and significantly enhances the provisions of the 1980 Hague Convention on child abduction: there is a stricter timetable, so abducted children are returned more quickly, and there is a back-up mechanism in the EU regulation that provides for the child's home country to make a final determination about what is best for the child.

The government has set out that in the event of Brexit the UK would return back to use of the 1980 Hague Convention as it provides for a network of rights and procedures that largely correspond to the EU instruments. However, lawyers argue that using this convention alone would significantly weaken the tools available to the court in relation to children abducted to other EU member states. Given the impact of child abduction, the ability to secure the return of an abducted child speedily is very important to their emotional wellbeing.

POINTS FOR PRACTICE

• A parent may be able to take preventative steps if they are worried their child may be abducted overseas by their other parent or a family member, such as applying for a Child Arrangements Order; preventing their child from applying for a passport; or asking if the police can contact the National Ports Office and ask them to alert all UK points of departure to try to prevent the abduction.
• In cases of child abduction, the Foreign and Commonwealth Office can help where the child is under 16 and there is a British link within the family, including in cases where the child is a dual national. They can try to verify the location of the child and if the country is a signatory to the 1980 Hague Convention they can put parents in touch with the relevant authorities in the UK so they can submit the relevant applications. If not, they can provide a list of English-speaking lawyers in that country instead.