Blog Series: Child Abduction (Hague & Non-Hague Cases)

A scenario no parent wants to face: finding out that your child has been moved to a different country by their other parent without your knowledge or approval.  Or alternatively, they have not returned your child following an agreed holiday or contact time in the other country. This nightmare situation happens all too often. Moreover, the legal process surrounding this area of law can seem complex. Our hope is that this blog series which is being published over the next three months will leave you better able to navigate the process.

Understanding Child Abduction Law in England & Wales?

In England and Wales, the law surrounding child abduction is strict and is designed to protect children and parental rights. However the specific rules regarding consent, travel, and international borders are complicated. Whether you are a parent planning a trip abroad or you are concerned about your partner’s intentions, understanding the legal landscape is vital.

What Qualifies as Child Abduction?

Under the Child Abduction Act 1984, it is a criminal offence for a parent (or anyone “connected” with the child, such as a guardian) to take or send a child under the age of 16 out of the United Kingdom without appropriate ‘consent’. This means the agreement of those with parental responsibility.

The Rules of Consent

‘Appropriate consent’ means you must have the permission of everyone who holds parental responsibility (PR) for the child before taking them abroad.

Abduction doesn’t always look like a dramatic kidnapping. It often occurs in two common forms:

• Wrongful Removal: Taking a child out of the UK without permission.
• Wrongful Retention: Taking a child abroad legally. For example, on holiday with the permission of the other parent/guardian, but then refusing to return them on the agreed date.

In brief, PR is held by:

• Birth Mothers automatically.
• A Father if they are named on the birth certificate.
• Any person who has acquired it via a Court Order.

Exceptions

There is a significant exception to the rule in needing to obtaining consent. This is where there is a Child Arrangements Order by virtue of the Children Act 1989 which states that the child is to live with you. This means you can take the child abroad for up to 28 days without the written consent of the other parent. However, this does not apply if there is a court order specifically prohibiting it. It is always best practice to communicate travel plans to avoid misunderstandings.

Disputes

If the other parent (or anyone that holds PR) refuses to give consent, you cannot simply go anyway. You must apply to the court for a Specific Issue Order to get permission to travel. Leaving without this permission (or the other parent’s consent) is a criminal offence.  Sometimes it is not clear on whether consent is given or not – please look out for our blog later on in this series on ‘What does consent really mean?’.

Hague vs. Non-Hague Countries

If a child is abducted, the success of any return depends heavily on where they have been taken. Countries are generally divided into three main categories:

1. Hague Convention countries: The Hague Convention is an international treaty signed by many countries (including most of Europe, the USA, and Australia) – find a full list here. Its primary aim is to return the child immediately to their country of habitual residence. This refers to the country where an individual was settled in their day to day life, so that the courts there can decide on custody disputes. In these cases, the foreign court generally must order the child’s return unless limited defences apply (such as a grave risk of harm to the child). The process is a streamlined and uniform in all the signatory countries, and therefore it is easier to return a child from a Hague Convention country.
2. Non-Hague countries: If a child is taken to a country that has not signed the convention (many countries in Africa, the Middle East, and Asia fall into this category), the process is much more difficult. There is no automatic international mechanism for return with the You have to start a legal case under that country’s local laws. The outcome is often unpredictable, slower, and dependent on that specific nation’s legal and cultural views on custody.
3. Some countries have evolved their own systems, which are outside of Hague and not necessarily reliable, such as the Pakistan Protocol.

Helen Habershon and I have assisted on a case where the children had been abducted from India to England. The mother had obtained a job within the NHS as a doctor.  The mother had lied to the Court in India, stating that she could not locate the father, to enable her to leave the country.  The father had in fact regular contact with the children, and was informed hours before the mother and the children boarded a flight from India to England. Despite the move having been planned well in advance, including the mothers job application to the NHS, we were able to assist the father in locating them in England.  With the use of private detectives and screenshots from video calls the father had with the children, we identified the Airbnb location of the children.  We obtained orders from the Court for the return of the children to India, and they were reunited shortly.  It was heartwarming to see photos of the father reunited with his children.  You can read our client’s 5 star review here.

First Steps to Take if Your Child is Abducted

Time is absolutely critical in abduction cases. If you suspect your child has been abducted or is about to be, you must act immediately:

• Call the Police: If the child is still in the UK but you fear they are about to be taken, call 999. The police can issue a “Port Alert” (an All Ports Warning) to flag the child’s name at all UK airports and sea terminals to prevent them from leaving.
• Seek specialist legal advice: Contact one of our team who specialises in international child abduction immediately: email Helen or me on hh@blanchardslaw.co.uk or ah@blanchardslaw.co.uk and mark your email as urgent. If your child is still in the country, we can help you apply for an emergency court order preventing the child’s removal.

If you are keen to follow our blogs including this series on Child Abduction, follow us on Linkedin. Instagram, or Facebook to be notified of the next blog in this series.

Our planned blogs will cover the following commonly asked queries:

• What is and how do I work out my child’s habitual residence?
• I am not clear if consent has been given – what does consent really mean?
• What happens when there’s no treaty? Legal/diplomatic routes, delays, obstacles, what parents can expect.
• How can I defending an application made against you: domestic abuse factors, the importance of your written statement and enforcement.
• When are my children’s wishes and feelings considered?

And more…

Call us on 0333 344 6302 today.