One of the hardest things family lawyers have to deal with is international child abduction. This is where one parent or person with legal custody (now known as living arrangements setting out that the child is to live with them) of a child under the age of 16 years takes or sends a child outside of the country without one of the following:
- The consent of all people with parental responsibility (PR).
- The consent of the people with custody of the child.
- The permission of the court.
This week’s post will shed light on the issues faced by parents, children and the courts in international child abduction.
Abduction is a growing problem where the possibility of free movement and integration is widespread and this prevalence when combined with families of mixed nationality, brings with it an international element to family law. A variety off questions are raised in family law disputes, such as, where the child should live following divorce and what rights each parent has over their child once they have crossed international borders.
The key thing to note is that prevention in the case of international child abduction is absolutely easier than cure; it is far easier to prevent a child being removed than it is to bring a child back, especially if the child is taken to a country outside of Europe or to a country that isn’t a signatory to the Hague Convention on Civil Aspects of Child Abduction. The Hague Convention is an international treaty of which 93 countries around the world are signatories, the role of the convention is to assist the return of a child to its ‘home state’, usually meaning the country they are habitually a resident in. For example, global icon Madonna recently made an application in New York for Rocco’s return to her from Guy Ritchie in the UK- however – she later withdrew her application. Her decision for doing so may have been partly because of the child’s requests that litigation end as soon as possible and given there were no welfare concerns, the court accepted her withdrawal with great scrutiny of the legal framework in doing so.
British courts have a number of tools at their disposal when it comes to preventing the unlawful removal of a child. Firstly, they can issue a court order prohibiting the parent from removing the child and then if the child is subsequently removed then that amounts to contempt of court, which is a criminal offence.
The court order is a very useful tool for both the other parent and their lawyer because in certain circumstances it can be used to prevent the issuing of a British passport for that child. The court order will also give good legal footing should the child be removed as it will be clear to courts in other countries that this has been done in violation of British law. A court can also require the surrender of a child’s passport where a court order preventing their removal is in force.
The police also provide assistance in cases of international child abduction and can issue what is known as a ‘port alert’, this means all air, marine and rail ports are notified of the potential abduction and border staff may be able to prevent exit from the UK. The Child Abduction Act 1984 makes it a criminal offence to remove a child from the UK without ‘appropriate consent’. This means that anyone removing the child with the proper authority to do so could end up with a custodial sentence of up to seven years, it may also be an offence under common law (case law).
Following a divorce, it is common that individuals will want to return to their country of origin. This can be for a variety of reasons but the most common is that they may want to return to a previous country they considered as home. Also, given the fact that divorce can be an emotional time in someone’s life they may want to surround themselves with family and familiar faces. Of course, all of this becomes complex when children are involved.
However, in some cases child abduction can be irreversible. This is often the case when a child has been taken and a court of another country grants the abducting parent custody or refuses to return the child. If a child is abducted to a country that is not a signatory to The Hague Convention the procedure is not as easy when attempting to return that child to the UK. Often, when the relationship between the parents is toxic, it can mean that there is no contact between the child and their parent until it reaches adulthood, or ever again in some cases.
If you believe you child has been abducted, is at risk of being abducted or have any concerns whatsoever instruct a family solicitor who will be able to take preventive steps. The Ministry of Justice has published specific advice to parents who suspect child abduction is imminent, further there is a .GOV webpage detailing immediate steps parents should take. Grayfords specialises in international family law and can provide emergency assistance to parents who believe their child may be or has been abducted. Grayfords does not hold a contract for Publicly Funded work and so unfortunately cannot accept matters where this remit is available.