legal aidInternational Movement of Children

Due to the increase in family breakdown and ease of travel, separated or divorced parents who take their children abroad may not realise that they have abducted their child.

Child Abduction

Many divorced or separated parents fail to realise that they need the permission of the other parent, or the Court, to move abroad and, without it they are not only contravening the other parent's rights but may find themselves the subject of criminal proceedings.

The numbers of child abduction cases are increasing as relationships between partners of different nationalities become more frequent.  Many cases involve the "custodial" parent believing that, because their child lives with them, they can do as they wish ignoring the fact that the other parent has custody or access rights according to international law.

The UK has signed up to the Hague Convention on International Child Abduction and is a signatory to Brussels II Revised (this specifically governs matters between Member States of the European Community). Both require that courts in the country to which a young person is taken must, with few exceptions, return the child.

Under the Child Abduction Act 1984, it is a criminal offence for anyone connected with a child to take them out of the UK for more than 28 days without the consent of any other person who has parental responsibility for that child or a consenting order from the courts.  A person is connected with the child if they are a parent of the child, guardian or special guardian, anyone who has a child arrangements order for the child or who has the child living with them.

Child Abduction within the UK

The legal systems of Scotland and Northern Ireland differ from England and Wales and, historically, this has led to conflicts of jurisdiction where two different orders could be made in different parts of the UK at the same time.  This made it possible for parents to ignore an order made in one part of the UK, move to another and institute fresh proceedsings with the hope of a different result.

Part I of the Family Law Act 1986 aims to prevent conflicting orders being made in respect of a child in the UK.  Most importantly, the Act means that orders made in one part of the UK are enforceable throughout.  The court that originally made the order can forward the papers to the appropriate court to be registered and therefore enforceable.

The court can order passports to be surrendered and a person with parental responsibility can apply for a Location Order to have the child's whereabouts established.  This often involves the assistance of the police who, coupled with the court, can prove very effective in these cases.

International Child Abduction

When anyone connected with the child (but usually the parent) takes a child over an international border and thereby away from their place of habitual residence without the permission of those with Parental Responsibility (usually the other parent), this is considered to be international child abduction and can cause a good deal of confusion and distress for the other parent or carer.

Those requried to give their consent would be the mother, the father (if he has parental responsibility), guardian, special guardian or anyone who has the child living with them or has permission from the court.

The Hague Convention & European Convention

The UK is a signatory and bound by the regulations set out in The Hague Convention on the Civil Aspects of International Child Abduction and the European Convention.  This is an agreement by a network of countries (referred to as convening states) to work together in order to deal with situations where a child aged under 16 has been wrongfully taken from their habitual residence (country of residence) to another without the other parent's permission or legal authority to do so.

The Convention's regulations seek to ensure the swift return of the child to their country of residence in order that the court in their country of residence can make the appropriate orders regarding the child.  The Convention does not work explicitly to return the child to the other parent but rather to their country of residence where any applications by either party can be properly considered by the court of that jurisdiction.

The European Convention covers most of the European States while the Hague Convention has a broader geographical scope.  To date 69 states are signed up to either treaty.

The court of the jurisdiction to where the child is abducted, when considering an application for return to the child's place of habitual residence, has discretion to refuse to return a child under some circumstances including:

  • If it can be proved that the person or institution having the care of the child did give their consent to the removal or was not exercising the custody rights at the time of the removal.
  • There is a risk that return could expose the child to grave risk of physical or psychological harm.
  • If a child has been wrongfully removed for more than one year in exceptional cases it can be argued that the child is settled in their new environment and removal would not be in their best interests.
  • In some states if the child has reached sufficient maturity and states they do not wish to be returned this can be prohibitive.

It is therefore vital, in the case of any international child abduction, to seek legal advice swiftly and act immediately to ensure the best chance of your child's return.

Child Abduction to a Non Hague Convention Country

Tracing and returning a child from a non-Hague Convention country is more difficult since there may be very little in the way of protocol to assist you.

As in all cases of parental child abduction you much first contact the police, an experienced family solicitor and in this case Reunite.  In addition to this you could contact the Child Abduction Section of the Foreign & Commonwealth Office on 0207 008 0878 (office hours) or 0207 008 1500 (out of office hours).  They can tell you whether the country your child has been taken to is within the Hague Convention or not and advise you further.

Where a child has been taken to a non-Hague Convention country, you must apply for custody and permission to bring your child home in the overseas court rather than in your country of residence.  The Foreign Office can offer the following assistance:

  • Provide a list of lawyers who speak English (note this is no recommendation or guarantee of professional competence).
  • Carry out a welfare report on the child if the other parent consents.
  • Contact relevant overseas authorities to express their interest in the case and to check the progress being made in finding the child.
  • Provide you with travel, accommodation and translation advice.
  • In exceptional circumstances attend court hearings abroad.

They cannot:

  • Locate the child if you do not know their whereabouts.
  • Assist in any illegal efforts to rescue the child.
  • Interfere with the legal system of another country.

Prevention is better than cure, especially in the case of children being taken to non-Hague Convention countries.  The following pages contain advice on how to prevent your child from being abducted if you can.

Moving Abroad with your Children

Where one parent, who is the primary carer, wishes to remove the children permanently, written consent is required from the other parent.  If consent is refused the move abroad with the children cannot take place unless permission is obtained from the court.

A parent, who removes the child from the country without obtaining such permission, has "wrongfully removed" the child, even if the child normally lives with them.

The courts give very serious consideration to granting permission to such applications, carefully taking into account the best wishes of the child and the impact on the parent left behind.  They will decide if the move abroad is an attempt to exclude the other parent from the child's life, or if it is motivated by a genuine desire to improve the life of the parent with care and the child.

If the plan is realistic and, the parent has considered the additional cost of contact, has good job prospects or family abroad and, has accommodation or schooling in place, the court will then look at the other parent and his/her reasons for opposing the move.

Above all, the court will consider the welfare of the child and whether it is in their best interests to move abroad permanently.  They must consider what impact it will have on the parent and child if the application is refused and how to ensure that contact with the non-resident parent continues, although such contact will necessarily be more dificult and less frequent.  If there are concerns that contact may not take place the court may add conditions to the permission being given such as the requirement for a surety or bond payment which, should the parent with care of the child not co-operate with contact, then the fund would support the other parent in terms of travel costs and even litigation costs which may arise in seeking to restore contact.

Generally speaking a well-founded and well-prepared application has a good chance of success.  If the move has been meticulously planned and would improve the quality of life for the child, the court would be unlikely to stand in the way of an application.  But this is a very complex area of law and, there is increasing concern that the relationship children have with the other parent suffers and legal advice should be sought immediately.

Child Abduction Team

We have particular expertise in this area with Law Society and Resolution Accredited Solicitors.  We can advise clients on the legal requirements when taking children abroad and regularly act for parents both here and overseas in Hague Convention and other child abduction cases.  We are on the referral list of the International Child Abduction and Contact Unit (ICACU) and are also part of the network of specialist family lawyers established by Reunite International, the leading UK Charity in the movement of children across international borders.

International Movement of Children Team

If you require more advice contact our Exeter office on 01392 258451