Defending child abduction proceedings

Child abduction is an emotive label and being accused of something like this can come as a surprise if you have had to flee with your children from an unhappy or unsafe family situation. Strictly, however, removing a child from one country to another without the consent of the other parent (and any others with legal rights) or the Court’s permission, is international child abduction.

We regularly act for parents who find themselves having been accused of child abduction. We are one of only a small number of law firms that are recognised experts in child abduction cases. It is important not to panic and to take specialist legal advice without delay.

There are often a number of factors leading to the abduction. It may be a step taken after a lot of thought to be closer to a support network but sometimes it may occur very suddenly in a manner that was not intended because of a desperate need at that time to escape domestic violence. Whatever might be the reason behind the abduction, a parent taking this action will always only be doing so in the belief that it is in their children’s best interests.

There are a number of international laws that apply to international child abduction and we are fully familiar with them and how they operate in practice. These laws provide a process by which a parent can make a Court application for their child’s return to the country from which they were removed. The most widely used international law for an abducted child’s return is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). This is an international treaty which a number of countries have signed, including the UK. Legal aid is available for people accused of abduction under this Convention, subject to meeting some criteria. We are contracted with the Legal Aid Agency.

There are some requirements that must be fulfilled to allow a Court application for a child’s return to be made. A parent that is served with child abduction proceedings and is accused of child abduction will undoubtedly want to know if there is a defence that they can use to retain the children in England. We will go through all the options with a parent faced with this situation and assess whether any of the defences in the proceedings are applicable and then put forward the defences in the strongest possible terms. The possible defences to a Hague Convention application for a child’s return are:

  • A challenge to rights of custody or exercising them
  • A challenge to habitual residence
  • Child’s settlement
  • Child’s objections
  • Consent
  • Acquiescence
  • Harm/Intolerability

It is imperative that a specialist child abduction solicitor is consulted as the way the Court interrupts these defences and challenges to a child’s return to the original country can be very different to what a person not familiar with these matters may think and we are fully au fait with this ever-evolving area of law.

The other convention that might apply in a child abduction case is the 1996 Child Protection Hague Convention. There is also a European regulation which is commonly called Brussels II Revised and this is relevant to some child abduction cases. There are other defences or challenges if either of these is used by the other parent to seek the children’s return and we will fully consider them in every case.

It is important to take specialist legal advice as soon as proceedings have been served on a parent in this situation to avoid any unnecessary concessions to be made to the other side when understandably that parent is feeling very anxious about the future. Child abduction proceedings move at a very fast pace and having an experienced child abduction legal team by your side, will help to ameliorate a lot of the worry that is inevitably experienced in these cases.

A person worried they might be labelled as having abducted the children does not, however, need to wait to see if they are served with any Court proceedings by the other parent before they take specialist legal advice from us. It is a good idea to get legal advice from us in confidence early as we can then advise about what a parent in this situation can do to strengthen their legal position even before Court proceedings have started. There are several things that can be done to make the likelihood of the children staying in England stronger and we would carefully advise the parent of all of this at the very early stages to avoid any steps being taken without legal advice that could be legally unhelpful.

We can also help parents who have removed their children outside of England and Wales so as to minimise the risk of the children having to be returned when the circumstances of the case may mean that there are legal grounds to challenge this.

Child abduction is without any doubt something that brings with it high emotions and worry, we have this at the forefront of our minds and we bring our wealth of experience and expertise in each of these cases to achieve the best possible outcome for our clients and their children.

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