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When children are removed from their country of habitual residence without permission of all parents with rights of custody or the court, then this may very well be termed child abduction.
Under the Child Abduction Act 1984, s 1 it is a criminal offence for ‘a person connected with a child under the age of 16 if s/he takes or sends a child out of the UK without the appropriate consent’, being primarily the consent of each of the parents and anyone else who has parental responsibility, a residence order or rights of custody, is a guardian or similar.
The Child Abduction and Custody Act 1985 incorporates the Hague Convention and there is also the regulation known as Brussels II which primarily deal with cases which may be child abduction.
Where the other state is part of the EU and a signatory to the Hague Convention then Brussels II revised applies. Where the other state is not within the EU but is a signatory to the Hague Convention, then it applies. Where the other state is not a signatory to the Hague Convention and is not an EU state then the inherent jurisdiction may be invoked. The inherent jurisdiction is welfare based and normal welfare principles will be applied.
When applying to court regarding children being abducted from this jurisdiction (England & Wales) then there may be repeated without notice applications, affidavits and other pleadings to be put before the court. The applicant who is trying to recover his/her child has to prove the child was habitually resident in the country it is alleged s/he was abducted from (this can be as little as 6 months). The left behind parent also have to prove a right of custody (e.g. parental responsibility, residence order, paternity, relationship with child). Thirdly has the right been breached by a removal or retention of the child.
The defences to an alleged child abduction claim are varied but include; child was 16 at time of the hearing; child not habitually resident in requesting state; applicant has no rights of custody; applicant was not exercising a right of custody; applicant acquiesced or consented; proceedings commenced more than one year after removal/retention; grave risk of physical or psychological harm; child objects to return and is of sufficient age and maturity.
The International Child Abduction and Contact Unit (ICACU Unit) can be of assistance in these matters and should be approached soonest by a left behind parent. It is the Central Authority for England and Wales regarding Hague Convention matters and the civil aspects of international child abduction. REUNITE also provide services for those parents whose children may have been abducted outside of this jurisdiction.
Abduction across the borders of Scotland and Northern Ireland within the UK has its own particular legal problems and Part 1 of the Family Law Act of 1986 aims to deal with competing proceedings across the borders within the United Kingdom. It also allows for orders made in one part of the UK to be recognised and enforceable in all parts of the United Kingdom.
If you are aware that there may be a risk of your child being abducted outside of England and Wales then immediate court action is normally required on an ex parte basis. There may also need to be a port alert and the out of hours duty judge of the high court made aware immediately of the risks of abduction. Passports may have to be given up, a prohibited steps order put in place, restraining of applying for passports, interim residence order and a bond may all need to be considered depending on the circumstances.
We have a large amount of experience in this area of family law as McKenzie Friends and our assistance is invaluable in such times of real anxiety and urgency.