International child abduction

Child abduction has been on the increase for a number of years because of the ease by which people can now travel around the globe. Child abduction is sometimes carried out by a family member, but it is usually carried out by the parent of the child. Stranger abduction is a criminal matter and this is a separate area of law.

International child abduction is a highly specialist area within Family Law. It is important that anybody affected by child abduction takes the earliest possible specialist advice from a child abduction lawyer who will be up to date with the fast-evolving law in this niche area. Venters Solicitors is a member of the Ministry of Justice, International Child Abduction and Contact Unit’s panel of specialist solicitors. We have a team of expert lawyers who regularly act in these complex international cases. We have a huge amount of experience gained over many years in acting for both abducting parents and parents who wish to be reunited with their children. It is very important that any child abduction Court application is made without delay. We are well equipped in taking all the necessary steps to make urgent child abduction applications to the Court for our clients at short notice.

We also advise and act in cases to prevent imminent child abduction from taking place. It is important to act quickly if there is a threat of abduction or other reason to fear an abduction.

How child abduction occurs

Child abduction can be devastating and have far-reaching consequences. Child abduction occurs when a child is removed from one country to another without permission of relevant persons or the Court. Permission of the other parent (and any other relevant person or institution with rights and responsibilities for the child) is usually needed or otherwise a Court Order giving permission for the removal. A child being kept in a country abroad over and above an agreed temporary period such as a holiday is also a type of child abduction. The terms wrongful removal and wrongful retention all refer to forms of child abduction. Child abduction in the non-legal world is sometimes referred to as child kidnapping, child snatching or child capturing.

In international families, child abduction may occur following a relationship breakdown when one parent would like to live with the child in a different country for reasons such as wanting to return to their home country. Sometimes, the parent taking the child may be doing so part way through a custody dispute in the knowledge that it is child abduction. In other cases, the parent may be acting in obliviousness that any law is being broken as they believe they are entitled to make this decision about their child and do not realise that there are legal boundaries.

International child abduction laws

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.

There are some requirements that must be fulfilled to allow an application for a child’s return to be made, such as that the child must have some degree of integration into the social and family environment in the original country. In law, this is called “habitual residence”.

It is becoming more commonplace for families to live in more than one country if for example one of the parents has a job that requires a lot of travel. In these cases, it can be difficult to establish where the child’s usual home is and we will carefully evaluate this and put the case forward in the strongest terms.

There are only a very limited number of defences to Hague Convention child abduction applications.

The Hague Convention also allows a parent to secure the effective exercise of rights of access/contact. This involves a different procedure to bring the application to Court. More information about securing contact/access to a child can be found here.

There are two other important international laws that are relevant to child abduction, namely (1), the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, and (2), Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments. We can advise in detail about these laws if they are applicable to your case.

In some cases, if there is already an existing Order relating to the children in the original country then this can be recognised and enforced in England with the result being the children must be returned. This can be a quicker way of succeeding in having the children returned home and we will consider the more favourable route of achieving the children’s return when more than one option is available.

Seeking a child’s return from England and Wales

A parent may wish to recover their child back to their original country of residence if they have been abducted into England and Wales.

We fully advise parents about what is needed if they would like to make an application to the English Court for a child’s return to their original country under the Hague Convention. Legal aid is available to every parent seeking a return of their child from the English Court under the Hague Convention, irrespective of their financial situation. We can provide emergency legal aid in these cases so that there is no delay in us acting for you.

If the country to which the parent would like the child returned is not a signatory to the Hague Convention then we will explain what alternative options you may have. We will also advise about whether any of the other relevant international laws apply to the case.

In most cases, unless the parent wishes to, they will not be required to travel to England for the Court proceedings and we are well experienced in using facilities such as video conferencing to communicate with our international clients throughout their case. We fully understand that it can be especially daunting to be involved in legal proceedings concerning your child when you live in a different country. As a result, we always ensure we provide our clients with updates throughout the whole journey and guide and support them through what can be a complex legal process.

Whilst child abduction proceedings are usually very fast paced, we will always consider with our clients whether they would like arrangements to be made for them to see their child while the Court process is still continuing and a final decision is awaited.

Seeking a child’s return to England and Wales

If a child has been taken from England and Wales and kept abroad wrongfully, then there are legal steps that a parent wanting to recover their child back home can take both in England and in the country to which the child has been taken. In some abduction cases, it can be extremely valuable to have taken legal action in both countries to maximise the likelihood of the child being successfully returned home. There are a number of important factors to consider in relation to whether action in both countries may be beneficial. In every case, we will carefully review the merits of there being dual legal proceedings and work in partnership with any foreign lawyers that might be necessary.

Resisting a child’s return

Any parent making a child abduction Court application will want to know what is the likelihood of them being successful. As long as the criterion for the application under the 1980 Hague Convention is met, there are only a limited number of defences that the other parent may attempt to use. The defences are construed narrowly by the Court and they are:

  • Child’s settlement
  • Child’s objections
  • Consent
  • Acquiescence
  • Harm/Intolerability

Wardship

If the Hague Convention does not apply to a case and nor do any of the other international abduction laws then it may still be possible for a parent to seek a return of their child using domestic English law. In these situations, what are called Wardship proceedings are usually issued at the English High Court in London. Wardship being in place would effectively make the Court a Guardian of the child and no important decisions about that child can then be taken without the Court’s permission. The Court in these proceedings will consider whether it is in the child’s best interests to be returned to their original country.

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