What To Do If Your Child Is Abducted By The Other Parent

Kaydance Page Etchells is just two years old, but she has sparked an international manhunt and global media interest.

In May 2016, Kaydance was illegally taken out of Canada by her mother, Lauren Ann Etchells, who holds dual UK/Canadian citizenship. The toddler was reported missing by her mother Tasha Brown, Etchells' estranged wife.

Last month, on Kaydance’s second birthday, Ms Brown spoke emotionally at a news conference, begging for information about her daughter’s whereabouts.

"Every day I wonder where you are and I wonder if you're all right," said Brown.

"I wonder if you're walking more, if you're talking more, if you're laughing or crying.

"Rather than celebrating your second birthday together Kaydance, I'm instead in a police room sending a plea to the world to ask for help in finding you," said Ms Brown, who has set up a Facebook page trying to find her daughter.

Ms Etchells was ordered by a Canadian court to surrender Kaydance’s UK passport and not apply for a Canadian one or leave the West Coast of Canada. However, she defied these instructions, organised a Canadian travel document for her daughter and left for London accompanied by her new partner, Marco van der Merwe, and their newborn son Marcus.

An international warrant has been issued for Ms Etchells arrest.

It is believed the family may be somewhere in the Netherlands.

A parent’s worst nightmare

Parental child abduction is every parents’ worst nightmare. Our family law solicitors can work closely with our Immigration team to prevent a child being removed from the UK and to have them returned. We have been highly ranked by the Legal 500 for Human Rights and Immigration law and the head of our family department, Rakhi Singal is a member of Resolution, a group of Family Solicitors dedicated to resolving family law disputes in a non-confrontational manner. Our family and Immigration lawyers can provide you with the best advice on parental child abduction available in London.

If your child has been removed from the UK without your consent, the steps required to have them returned depend a great deal on whether the country they have been taken to is a Hague Convention or non-Hague Convention country.

Hague Convention countries

Left-behind parents from countries that are signatories to the Hague Convention on Civil International Aspects of Child Abduction 1980 (the Hague Convention) can make an application under that Convention seeking a return of the abducted child to the child’s place of habitual residence.

A full list of Hague Convention countries can be found at the end of this article.

If the child has been taken to an EU country (with the exception of Denmark), Brussels II bis also applies and prevails over the Hague Convention. Brussels II bis states that EU child abduction cases must be decided within six weeks.

To make an application under the Hague Convention, you must satisfy Article 3 of the Hague Convention:

“Article 3 The removal or the retention of a child is to be considered wrongful where

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub‐paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

In addition, for the Hague Convention to apply, the child must be a habitual resident of the signatory State and be 16 years or under.

Applications under the Hague Convention are heard before a high court judge and are made via the central authority - the International Child Abduction and Contact Unit in the Ministry of Justice.

Making an application under the Hague Convention can be complex. For the best advice and representation, instruct an experienced family law solicitor.

There are defences available to the abducting parent. A signatory country can refuse to return a child if it can be proven:

a) the left-behind parent consented to the removal

b) there is a grave risk a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

c) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views

The foreign court is not concerned with residential and contact rights regarding the child; their job is to return the minor to their country of habitual residence. Any disputes between the parents must be dealt with in the UK.

Non-Hague Convention countries

If your child has been taken to a non-Hague Convention country, the challenge to get them back is more difficult. You and your family solicitor will have to apply to the courts in the jurisdiction your child has been taken to and will be reliant on local law.

For example, if your child has been taken to Vietnam, the country will not provide legal representation for a parent whose child has been taken their illegally. Your UK solicitor will need to liaise with local solicitors to try and arrange the child’s return. Under Indian law, judges will adjudicate on child abduction matters based on their own discretion. However, the country is looking at signing the Hague Convention but wants changes to the Convention to be made.

“Before India becomes party to the Hague Convention, we have to put in place a strong mechanism with built-in checks and balances. Creating a central authority, with a judge to head it, which will receive all applications on parental child abduction and removal and facilitate return and exchange is in the interest of India,” Anil Malhotra, a counsel specialising in inter-country child removal matters and co-author of India, Inter-Country Parental Child Removal told the Economic Times magazine. divorce lawyer Malavika Rajko added: “Until recently, India had taken a principled stand against the Convention. It must remain firm in its resolve. The Indian Supreme Court is already empowered to provide recourse and remedies to aggrieved parents in such cases.”

Final words

Child abduction is a serious matter, and as can be seen in the case of Kaydance Page Etchells; even if the child is taken to a Hague Convention country, he or she must be found before the process of having them returned can begin.

If you believe your child may be in danger of parental abduction, please contact our Family Solicitors immediately, as they can provide you with the best advice on how to prevent a potential abduction occurring. If the abduction has already taken place, we can advise and represent you on the next best steps to take.

OTS Solicitors is one of the most respected Immigration and family law firms in London. By making an appointment with one of our Immigration and/or Family Solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in all child abduction matters.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.

Appendix – List of Hague Convention Countries

The Hague Convention on the Civil Aspects of International Child Abduction is in force between the United Kingdom and the countries listed below:

• Albania
• Argentina
• Armenia
• Austria
• Australia
• Bahamas
• Belarus
• Belgium
• Belize
• Bosnia and Herzegovina
• Brazil
• Bulgaria
• Burkina Faso
• Canada
• Chile
• Colombia
• Costa Rica
• Croatia
• Cyprus
• Czech Republic
• Denmark
• Dominican Republic
• Ecuador
• El Salvador
• Estonia
• Fiji
• Finland
• France
• Georgia
• Germany
• Greece
• Guatemala
• Honduras
• Hong Kong (China)
• Hungary
• Iceland
• Ireland
• Israel
• Italy
• Japan
• Latvia
• Lithuania
• Luxembourg
• Macau (China)
• Malta
• Mauritius
• Mexico
• Moldova, Republic of
• Monaco
• Montenegro
• Netherlands
• New Zealand
• Nicaragua
• Norway
• Panama
• Paraguay
• Peru
• Poland
• Portugal
• Republic of Korea (from 1 June 2015)
• Romania
• Saint Kitts and Nevis
• San Marino
• Serbia
• Singapore
• Slovakia
• Slovenia
• South Africa
• Spain
• Sri Lanka
• Sweden
• Switzerland
• Thailand
• The Former Yugoslav Republic of Macedonia (FYROM)
• Trinidad and Tobago
• Turkey
• Turkmenistan
• Ukraine
• United States of America
• Uruguay
• Uzbekistan
• Venezuela
• Zimbabwe.