The term ‘child abduction’ often has very sinister connotations and more usually is associated with a stranger taking a child. In reality, abduction often carried out by one of the child’s parents who has parental responsibility.
A parent may have several motivations to take their child to a new country to live.
However, difficulties often arise when the parents are not in agreement as to whether this is in the best interests of the child. This frequently results in dispute and should you wish to relocate overseas with your child, mediation is often the natural first step. If an agreement cannot be made in mediation, you may wish to make an application to the Court. This is explored in one of our recent blogs: Tips on child relocation.
Despite an application to the Court being an option, it is not always the route people choose. In certain circumstances, people may choose to relocate without the other parent or the Court’s permission. Sometimes, one parent may think they have the other parent’s permission but they do not have anything in writing. If your child has been taken to another country without your permission and there is no ‘Lives With Order,” in place, there are legal mechanisms in place to resolve things. The Court has significant powers to ensure that a child is returned to their country of habitual residence. However, it is important for steps to be taken as soon as you realise an abduction has taken place.
Despite this, mediation is always a good starting place and there are specialist mediators who can deal with international disputes. One useful organisation is Reunite International. Where mediation is not successful, there are legal options available. These procedures are complex and legal advice is advised as the mechanism used will depend on the destination country to which the child has been taken.
Hague Convention 1980
The Hague Convention 1980 is essentially a treaty which has been signed and ratified by over 100 countries. The treaty aims to protect children from wrongful removal, i.e. when a child has been taken out of a country without the other parent’s permission. It also covers wrongful retention i.e. when a child is unlawfully kept in a country without the other parent’s permission (for example when a child is taken on holiday by one parent and kept there). The Hague Convention seeks the swift return of the child to the ‘left behind’ country.
In order to use the Hague Convention for a return of a child both countries must be signed up to the Convention. The list of Hague Convention countries can be found here: HCCH #28 - Status table. Poppy Harber of Brethertons has produced a useful blog which examines the Hague Convention. It can be accessed here: What Should I Do If My Child Is Taken Without My Consent?
Wardship Proceedings
If both countries have not signed up to the Hague Convention then it is likely that Wardship proceedings will berequired. Wardship is where a child is deemed a ‘ward’ of the court through the use of the High Court’s inherent jurisdiction. The Court will only make a person a child of court when they are under the age of 18, and are British Citizens who are physically present in England and Wales, or who are habitually resident in England. For example a child who was born in Afghanistan but who has been abducted and is living the UK could be a ward of the court.
Wardship is often used in complex cases, such as child abduction. Once a child is made a ward of the court then no Orders concerning the child can be made, and no further action be taken in respect of the child, unless ordered by the Court. This essentially means that the Court will need to approve any important decisions in respect of the child. An example of this is whether a child can be enrolled in school. When a child is a ward of the Court of England and Wales it is unlikely that the court will allow a child to be removed from the jurisdiction without the Court’s consent and permission. If a child is deemed a ward of the Court this is not an indefinite decision. Court proceedings will end with a Final Hearing and a decision being made in respect of whether the child is to be returned or whether they are permitted to stay within the jurisdiction of England and Wales.
At Brethertons we have expert lawyers who specialise in child abduction. For advice in relation to a child abduction matter, please contact our family team at info@brethertons.co.uk.
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