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It is an offence to take a child out of the country without the appropriate consent
C H I L D R E N ’ S L E G A L C E N T R E
Volume 1, Issue 1
Newsletter Date
C H I L D R E N ’ S L E G A L C E N T R E Promoting Children’s Rights
Abduction The Children's Legal Centre is a unique,
independent national charity concerned
with law and policy affecting children and
young people.
This information is correct at the time of writing [September 2006] The law in this area is subject to change. The Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication.
Individuals may photocopy information in CLC publications for their personal use. Professionals, organisations and institutions must obtain permission from the CLC to photocopy our publications in full or in part.
What is child abduction?
Child abduction is when a person takes or sends a child out of the UK without the permission of those with parental responsibility or the permission from the court. If a person has a residence order for a child they will not be acting unlawfully if the child is taken or sent out of the UK for less than 4 weeks without the appropriate consent.
What is the law relating to child abduction?
It is a criminal of-fence under the Child Abduction Act 1984 for a person connected with a child under the age of 16 to take or send that child out of the UK without the ap-propriate consent.
A person is connected with a child if they are a parent of the child, a guardian of the child, a special guardian of the child, anyone who has a residence order in force with respect to the child, or anyone who has the child living with them.
The appropriate consent would be the consent of the mother, the fa-ther (if he has parental responsibility), the guardian, the special guardian, anyone with a residence order, anyone who has the child liv-ing with them or permission from the court.
How can I legally move abroad with my child?
If there is only one parent with parental responsibility for the child, the parent is able to lawfully remove their child from the UK providing that it is not forbidden by a court order. However, good practice and case law suggest that if one parent wishes to remove a child from the UK to live abroad, that parent should obtain the con-sent of the other parent (with or without parental responsibility) or that of the court. Where there is another person or persons with parental responsibility, the parent will need to obtain either oral or written consent from those people. Where there is a resi-dence order or a care order in place, written consent from those with parental responsi-bility will be required. If the parent wishing to go abroad is unable to obtain this consent, then they can apply to the court and ask for the courts consent.
What if I cannot obtain the appropriate consent?
When 2 or more people with parental responsibility for a child cannot come to an agreement about taking the child out of the UK, then the parent wishing to take the child will have to obtain the courts permis-sion to do so. If they do not do this, it may be a criminal offence or contempt of court if they take the child out of the country without the appropriate consent.
A court can order passports
to be surrendered and the
disclosure of the child’s
whereabouts.
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How long can I take my child out of the UK for without breaking the law?
If a parent has a residence order, then they may take the child out of the UK for up to four weeks without the consent of anyone else who has parental responsibility for the child. If the parent with the residence order intends to take the child out of the UK for longer than 4 weeks, then they will need the appropriate consent.
If a parent wants to take the child abroad for a short holiday it is sensible to seek the agreement of the other parent before going. Parents should be reasonable about this and provide the other parent with plenty of notice.
The courts can impose restrictions or require that a passport be surrendered if a parent is concerned about the fre-quency of trips or fears that the other parent may abduct the child.
How can I stop my ex partner moving to another area in the UK with my child?
If a parent is going to move to another area within the UK and take the child with them, that parent does not need the consent of anyone else with parental responsi-bility. If the other parent does not want the child to move, then they can apply to the courts for a prohibited steps order, and ask the court if it will prevent the par-ent from moving with the child.
What happens when a child is abducted, but remains within the UK?
If there are any existing court orders in respect of the child, they will be recognised and enforced in all courts over the UK. The court where the order was originally made can forward the relevant papers to a court in an-other part of the UK, who will then register the order.
Any UK court may also order passports to be surren-dered and the disclosure of the child's whereabouts.
How can I trace my child within the UK?
The longer it takes to trace a child, the harder the effective return of the child may become. This is because the longer the trace takes, the more likely the child is to be settled in his or her new residence and another disturbance may be against his or her best interests. Where a child has been taken and remains in the UK there are a number of organisations that hold information which may assist in locating a missing child. It may be worth contacting some or-ganisations, but keep in mind some authorities will not disclose personal information.
A person who has parental responsibility for a child by virtue of a care order or an emergency protection order may apply to the court for a recovery order to have the child’s whereabouts found.
A mother can take a child out of the UK
without the fathers permission if the
father does not have parental
responsibility
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Abduction
I am an unmarried father without parental responsibility, what can I do to prevent my child’s mother taking my child?
If an unmarried father without parental responsibility fears that his child will be taken to another part of the UK, then he could consider getting a prohibited steps order and/or a residence order. (If an unmarried father without pa-rental responsibility is granted a residence order, he will automatically receive parental responsibility.)
A prohibited steps order, if granted by the courts, will prevent the mother taking the child. A residence order if granted by the courts will decide where the child shall live.
If an unmarried father without parental responsibility fears that his child will be abducted and taken out of the UK, there are some steps he can take to prevent this. If the father has not managed to prevent this, he may be able to rely on international law, which will aim to return the child to his or her place of residence if it can be show that the father without parental responsibility has had regular contact with his child.
How can I prevent abduction?
If a parent fears that their child will be taken abroad without his or her consent, then they should consider the follow-ing:
Alert the local police station, the parent will be asked to make a detailed statement.
Court Orders. Where there is risk of abduction, a parent can apply for:
-A prohibited steps order from the courts to prevent the removal of the child from the UK. A breach of this order would be a contempt of court.
-A specific issue order could settle a dispute about whether a child is allowed to leave the UK.
-A residence order to determine with whom the child should live.
-Or a parent could apply to the High Court to make the child a ward of court, this will immediately freeze the situation and prevent the child being taken abroad, and any attempt to take the child abroad will be contempt of court.
Contact the United Kingdom Passport Agency and ask them to surrender a passport or ask them not to grant a passport to the child. They will usually need to see a court order (as mentioned above), but they are not neces-sary in the case of unmarried mothers wishing to lodge an objection.
Contact Reunite: The International Child Abduction Centre. They can provide parents with a Child Abduction Prevention Pack, or visit their website www.reunite.org.uk.
“To cat ch t he r eader's at tent ion, place an int er esting sent ence or quot e fr om t he st ory her e.”
Page 4
I am the resident parent and I want to permanently move abroad with my child, I have not got the appro-priate consent so I will need to go to court, what will they consider?
The courts will decide the case with the welfare of the child being their paramount consideration and make their decision by determining what is in the best interest of the child.
The courts are likely to consider:
-The wishes and feelings of the child concerned.
-The child’s physical, emotional or educational needs.
-How the change in circumstance is likely to affect the child.
-The age, sex, background and any other characteristics that the court may find relevant.
-Any harm that the child has suffered or is likely to suf-fer.
-How capable each parent (and anyone else the court con-siders relevant) is of meeting the child’s needs.
-The powers available to the court (such as prohibited steps or specific issue orders).
The courts will also follow certain guidelines, these are:
-That the reasonable proposals of the parent wishing to move abroad carry great weight.
-These proposals must be scrutinised with care and the court must be satisfied that the parent has a genuine mo-tivation for wanting to move (i.e. it is not the intention of the parent to end contact between the child and the other parent).
-It is very important to look at the effect that reduced contact or no contact with the parent and other family members left behind will have on the child.
-There must be significant opportunity for the child to continue contact with the parent left behind.
Where there is a real dispute and both parents have very good reasons why they should be the resident parent, the court can look to the future plans of each parent.
What happens if I illegally removed my child from the UK, but I was unaware that I was breaking the law?
If a parent removes their child from the UK without the appropriate consent then they will be committing a criminal offence.
There are three defences to this criminal offence:
-Where the parent believed that the other parent has consented or would consent if he or she was aware of all the circumstances.
-Where the parent had taken all reasonable steps to communicate to the other parent the intention to re-move the child, but had been unable to do so.
-Where the other parent whose consent is required has unreasonably refused to give that consent.
When a court makes a decision about
the upbringing of a child, the child will
be the paramount consideration.
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Abduction
What do I do if my child has been abducted and may be taken to another country?
- Report the incident to the police. When a child has been abducted and is considered to be in danger of serious harm or death, the police will use The Child Rescue Alert Scheme. This can provide an early warning system to local radio and television stations. The police also have the power to arrest anyone who is suspected of abducting a child and they can circulate the child’s name to all UK points of departure via the Police National Computer.
- Contact a solicitor in the UK or organisation that can help such as Reunite, The Foreign and Commonwealth Office or the Child Abduction Unit at the Official Solicitors Department.
Some countries are members of an international agreement which seeks to return abducted children to the country in which they normally live. This agreement is known as the Hague Convention.
What can the law do to help me if my child has been ab-ducted and taken to another country?
If a child has been abducted from the UK, there are 2 Interna-tional Conventions that may assist a parent in tracing and return-ing their child. The Conventions are known as:
The Hague Convention
The European Convention
These Conventions have created a network of countries who work together with the intention in most cases to return the abducted child back to his or her place of residence. The coun-tries that have joined the Conventions are known as contracting states. The UK is a Contracting State to both Conventions.
What is the Hague Convention?
The aims of the Hague Convention are:
To secure the prompt return of children who have been wrongfully removed to or re-tained in a contracting state.
(i.e. to return the abducted child back to his or her place of residence.)
And to ensure that rights of resi-dence/contact under the law of one contract-ing state are effectively respected in other contracting states.
(i.e. to ensure contact and residence rights is-sued in one country are implemented and re-spected in another.)
To rely on the Hague Convention, the child must be under 16 and have been habitually resident in one contracting state and taken to another.
The UK is a contracting
state to both the Hague
Convention and the Inter-
national Convention.
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Terminology
Habitual residence: There is no legal definition of habitual residence; it is established depending on the different facts of each case, but generally means where the child has been living and is settled.
Wrongfully removed or retained. There must either be:
Wrongful removal, this occurs when a child has been taken from his or her place of habitual residence without the appropriate consent.
Or wrongful retention, when the child is not returned.
Rights of Residence/Contact. There must be a breach of residence or contact with the child otherwise the removal or retention of the child is not illegal for the purposes of the Convention. Where the parent has regular contact and exer-cises his or her parental nature with the child, this can amount to custody within the Hague Convention even though there is no order from the court to prove this. Because of this, some unmarried fathers without parental responsibility will be able to claim custody rights under the Hague Convention.
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How can the Hague Convention help me?
A parent can apply to the Central Authority where the child is usually resident or to the Central Authority of any other contracting state for assistance in securing the child’s return. The Central Authority of the country where the child is shall take all appropriate steps to obtain the voluntary return of the child. If this is not possible, court proceedings can be bought.
If a claim of wrongful removal or retention is made within the first 12 months, the contracting state where the child is will usually return the child to his or her original country so that the court in that country can decide what should hap-pen in the child’s future. After the 12 month period, it is more difficult for the child to be returned as the child may be settled in his or her new environment.
If a child has been abducted it is important to start proceedings as soon as possible otherwise the child may be settled in his or her new environment . Once a child is settled it is harder to remove the child as it may not be in his or her best interest.
If a child has been taken to a country
that is not a contracting state to either
convention, it is more difficult to have the
child returned.
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Abduction
Will my child meet the requirements of the Hague Convention?
A parent will not be able to rely on the Hague Convention if:
The child is not habitually resident in a contracting state.
The child is habitually resident in the contracting state
where the child has been taken.
There is no custody right being breached.
The other parent was not actually exercising his or her
custodial rights.
The child is now settled in his or her environment.
The parties were in agreement with the move.
If the child was to return to the resident country, he or
she would be exposed to physical or psychological harm or
otherwise place the child in an intolerable situation.
The child does not want to return to his or her resident
country and he or she has attained the age and degree of
maturity appropriate to have his or her decisions taken into account.
What is the European Convention?
Like the Hague Convention, the European Con-vention binds all the contracting states into working together to return the abducted child back to his or her place of residence. However the European Convention differs from the Hague Convention as it looks at resi-dence and contact orders rather than resi-dence and contact rights.
The European Convention can be used to en-force contact orders, however, this Conven-tion has been largely superseded by the Hague Convention.
What if my child is abducted to a country which is not party to either Convention?
When a child is abducted to a Non Convention country, there is not a network of authorities working together to en-sure the return of the child. A parent who wants their child returned to the UK will either have to come to an arrange-ment with the other parent, or start legal proceedings in the court where the child has been abducted to.
However, there are still things that the Foreign and Commonwealth Office can do to help. The Child Abduction Unit can give advice and provide practical help when dealing with authorities overseas.
Children’s Legal Centre
University of Essex Wivenhoe Park Colchester Essex CO4 3SQ
Phone: 01206 877910 Fax: 01206 877963 E-mail: [email protected] Website: www.childrenslegalcentre.com
Children’s Legal Centre Advice Line:
08088 020 008 © Corbis and Children’s Legal Centre image library. All photographs in this publication feature posed models.
The Children’s Legal Centre produces a number of publications including childRIGHT, a monthly publication and Working with Young People: Legal Responsibility and Liability. For further in-formation about our publications please contact us.
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The Child Abduction Unit at the Official Solicitors De-partment
81 Chancery Lane
London
WC2A 1DD
Telephone: 020 7911 7047
Fax: 020 7911 7248
Website:
www.officialsolicitor.gov.uk/
Reunite
International Child Abduction Centre
PO Box 7124
Leicester LE1 7XX
United Kingdom
Advice Line 0166 2556 234
Telephone 0116 2555 345
Facsimile 0116 2556 370
E mail: [email protected]
Website www.reunite.org/
Foreign and Commonwealth Office
Consular Division
Old Admiralty Building
London
SW1A 2PA
Telephone: 020 7270 1500
Fax: 020 7238 4517
E mail:
Website: www.fco.gov.uk
Abduction
Children’s Legal Centre Advice Line:
08088 020 008
