Jail Time for Child Abductors?

On 13 December 2011, in the criminal case of R v Kayani; R v Solliman ([2011 EWCA Crim 2871]), Lord Justice Judge refused to reduce custodial terms of three years and five years in respect of two men who had taken their children from their mothers, and stayed abroad for many years. He said that child abduction was ‘akin to kidnapping’ and lamented the differing maximum sentences of seven years for the former and life for the latter. He stated that the offences against the Child Abduction Act 1984 by both mothers and fathers were becoming increasingly troublesome:

“The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. .. depriving the children from contact with a loving parent with … It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.

“These are offences of great seriousness, with the additional complexity arising just because the abducting parent is the person best able to provide the children with a home.

” Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. On reflection, we can see no reason why the offence of child abduction should be placed in a special category of its own…”

My experience as a solicitor dealing with children issues, divorce and finances, is that Kayani is an extreme case. I have dealt with many civil child abductions over 16 years in practice, and not one of them has resulted in a conviction of any crime. This was on the basis that it was not in the children’s best interests to have their primary carer imprisoned.

In fact it is almost universally a precondition prior to the return of the children to their home country that the innocent parent does not involve the police. Judges will refuse to send the children home if this promise is not forthcoming.

Why are there so rarely consequences for the abducting parent? The individuals I deal with have taken their children, usually, to their (the abductor’s) country of origin. They may have married say, a Greek man, and moved to Greece upon the marriage and both children have been born there. With the relationship with the other parent breaking down, the mother, normally, suffers the destruction of her support network and wishes to return home to England. She knows her husband will not consent to the relocation, so she makes her plans in secret and leaves Greece. In this scenario, the mother may be fleeing domestic abuse or she may simply be unhappy with her adoptive country. I advised a client in this situation, where she came to her parents’ home with the children for an agreed holiday, but she had no intention of returning. She showed me photographs of the squalid and dilapidated villa she shared with her husband, and of course who could not feel pity in these circumstances? The children’s father brought proceedings in the English High Court for the summary return of the children to Greece under the Hague Convention on the Civil Aspects of Child Abduction. All the signatories to this multilateral treaty aim to protect children from the harmful effects of abduction, and England sends all but 10% of children home.  In the end my client was able to prove that to make her go back would cause her grave psychological damage, and this would impact negatively on the children. In the other 90% of cases, a parent fails in their bid for freedom, but very few of these will face prosecution. Understandably, the innocent parent is outraged about that, but only a brave judge would recommend otherwise.

When the Lord Chief Justice recommended a review of sentencing in this area, he was only likely to be referring to the Kayani-type case, not my English client. And yet there will be those who say that there is no difference between the two types of abductor, in that the end result is the same: one parent is deprived of time with his child.

Child abduction is increasing across the world, as more and more people live and work globally, forming international relationships and families. There is very little research into how the children of these families have been affected by the enforced estrangement from one parent, although it must be right that their suffering will be less severe where they are able to have some level of contact or access to that parent. Presumably that would not happen in the Kayani-type case. The left behind parent would say that there is little incentive for these “kidnappings” to abate, whilst there remains no judicial appetite to deal with all perpetrators equally, whatever their motives.