What is parental child abduction?

Posted onSeptember 17, 2019

It is always hard for top London children solicitors to advise a parent who has arrived in the UK with their child without the other parent’s agreement or court order or is desperate to leave the UK with their children and does not have the other parent’s agreement. If they leave the UK without the other parent’s written agreement or a UK court order, then they could face a charge of parental child abduction and separate children law family court proceedings.

Many parents do not see bringing their children to the UK or taking them abroad as “child abduction”. It is. Parental child abduction is defined as “the removal or retention of a child across an international border that is in contravention of a court order or is without the consent of the parent or the persons with parental rights.” Child abduction by a parent is an offence in many countries, including the UK.

How can OTS Solicitors help?

OTS Solicitors know how worrying it is to not know whether you can leave the UK or remain in the UK with your children. London based OTS Solicitors offer advice on all aspects of children and family law.

Whatever your children law concern, the children law team at OTS Solicitors will work hard to help you to resolve parenting arrangements or represent you in court proceedings. Please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced children law solicitors.

How can I legally leave the UK with my children?

If you do not want to be accused of child abduction, the best London children law solicitors advise that to leave the UK legally with your children you either need:

The written agreement of the other parent and anyone else with parental rights; or
A UK court order giving you permission to take the children abroad to live.

If you do not secure an agreement or court order, you could be accused of child abduction and either the wrongful retention or removal of your children.

What is the wrongful retention of a child?

You may have heard a children solicitor talking about “wrongful retention”. It means that a child has been taken abroad with permission from the other parent or court, for example to go on holiday or see relatives, but the child is retained in the new country after the agreed date of return. The best London children solicitors advise that wrongful retention is classed as child abduction.

What is the wrongful removal of a child?

If solicitors or the court talk about the “wrongful removal of a child they are referring to a parent taking a child out of the UK without the permission or agreement of the other parent and without a court order. This is also classed as child abduction. The penalties for the wrongful retention or removal of a child are the same.

What is the Hague Convention?

The Hague Convention was introduced to stop parents from snatching their children and taking them abroad. The purpose of the Convention is to make it easier for parents to recover their children from abroad. The top London children solicitors advise that a parent can only rely on the Hague Convention if the country where the child has been taken from and the country where the child has been taken to are both signatories of the Hague Convention.

Many parents who take their children out of the UK do not realise that they are in breach of The Hague Convention and the implications for them. The effect of breaching the Hague Convention is serious. The court can order the immediate return of the child from the country where the child was taken from. That can leave the parent who took the child in a far worse situation than the one they were in before they took the child to a foreign country.

The top London children solicitors say that many parents think that the Hague Convention only applies if a non-residential parent snatches a child because of a contact or other dispute. However, the Hague Convention also covers the case of the primary residential parent taking their children out of the UK. For example, a mother may have left the UK with her children fleeing domestic violence from her spouse or because she wants to return to her country of origin, where she will have the help and support of family. That is still classed as child abduction if the mother leaves without an agreement or court order.

If a country has signed The Hague Convention, then the family court of that country will not try to claim jurisdiction and make child arrangements orders (similar to the old style child custody and child access orders). Instead the court will look at ruling on whether the child should be returned to the country they came from.

Can you stop a child being returned to a Hague Convention country?

The Hague Convention only has a few narrow defences to a Hague Convention abduction. If the defences to a Hague Convention claim fail, the court will order the return of the children to the country they were taken from. The court in that country will then decide on the custody and access and parenting arrangements for the children. In the UK, the court would be asked to make a child arrangements order to settle who the children should live with and the access or contact arrangements.

As the legal ways in which a parent can defend a Hague Convention abduction claim are so narrow, the best London children solicitors recommend that parents take expert legal advice before taking their children out of the UK. If you have arrived in the UK with your children then you should get expert legal advice to look at your options.

What are the defences to a Hague convention child abduction?

The best London children solicitors emphasise that defences to a Hague Convention child abduction case are hard so parents should take early legal advice to avoid the costs and emotional trauma of a Hague Convention claim.

The Hague Convention defences are:

The other parent acquiesced or consented to the move at either the time of the removal or retention or subsequently. Many cases centre on consent and agreement. The other parent may say they thought the child was leaving the UK for a holiday rather than a permanent move. That is why a parent should make sure any agreement to a move abroad is recorded in writing and signed by both parents after the parents have had independent legal advice from children solicitors;
There would be a grave risk of physical or psychological harm or the child would be placed in an intolerable situation. The risk cannot come about because of the child abduction. Any domestic violence concerns are often said to be capable of being overcome by protective measures enforceable by the courts of the country to which the child is returned;
The child’s wishes as the child may object to returning. However, the court will assess the child’s maturity and understanding and check that the child has not been unduly influenced by one parent;
The child has been settled in the new country for twelve months. With this defence, the crucial point is that the twelve months runs from the other parent’s knowledge of the child’s whereabouts. Top London children solicitors emphasise the importance of parents keeping communications with the other parent so they can prove date of knowledge of the child’s whereabouts;
The parent seeking the return of the child has not been exercising what are referred to as “rights of custody” before the child’s removal or retention.

Child abduction to a country that has not signed the Hague Convention

Many countries have not signed the Hague Convention. If your child has been taken out of the UK to a country that is a non-signatory country, then how easy it will be to recover the child will depend on the country that they have been taken to.

The best London children solicitors advise that some countries cooperate with the UK as if they had signed the Hague Convention. Some countries have taken the step of entering bilateral arrangements with England that are similar to the Hague Convention. Sadly, other countries do not cooperate.

If a parent fears child abduction to a non-Hague Convention country it is vital that they get specialist early advice to see if court orders can be put in place to stop the child being taken out of the UK. If the child has already been taken out of the UK, do not delay in getting expert legal advice. A parent may think that they cannot do anything in the UK but top London children solicitors can advise on the option of wardship court proceedings or applications to seize assets belonging to the abducting parent or to get information from relatives in the UK to help trace the child’s whereabouts.

How can OTS Solicitors help?

OTS Solicitors advise on all aspects of children and family law. Whatever your children law concern, the children law team at OTS Solicitors will work hard to help you to resolve parenting arrangements or to represent you in court proceedings.