At TV Edwards LLP we regularly act for parents who find themselves accused of abducting their children. Such an accusation often comes as a shock in circumstances in which the parent that has removed the children to England and Wales has done so under the belief that they were legally entitled to do so, or they felt they had no choice but to flee with the children from an unhappy or dangerous family situation.
Key points:
- Parental Child Abduction is when a parent has fled England and Wales with their child without the consent of the other parent, or has retained a child past the agreed-upon end date of a visit.
- If you are accused of this, even without any prelude or warning, it is vital that you seek the services of expert child law representatives.
- If you fear that your child has been abducted by their other parent, or that they are at risk of abduction, follow these steps to improve the chances of prevention.
Parental Child Abduction Explained
The word “abduction” seems to be an unfortunate label in a situation in which a parent has had to flee with their children. But from a strictly legal point of view, a removal of a child from one country to another without the consent of the other parent (where this is a legal requirement in the country concerned) or permission of the local Court will be seen as an abduction or as a “wrongful removal”. Equally, retaining children following a consensual temporary stay abroad is also seen as a type of abduction, a “wrongful retention”.
Parental child abduction commonly occurs following a relationship breakdown when the children’s primary carer has been living abroad but feels better able to parent in their home country with the benefit of a support network made up of family and friends.
In other cases it may be that the parent and/or children were suffering from domestic violence at the hands of the other parent, and felt that the only real escape was to remove the children abroad. There are often a number of reasons leading up to the children’s removal or retention. Whatever the reason, a parent removing or retaining their children will rarely take this step lightly, only do so believing it to be in their children’s best interests.
Child Abduction Under the Law
There are a number of international treaties and laws that govern these situations. They provide a mechanism for applications to be made for the children’s return to the original country. The prerequisite for these applications is that the children must have some degree of integration into their social and family environment in the original country, which is referred to as “habitual residence”.
The removal or retention must also be in breach of the other parent’s legal rights which are being exercised or in breach of rights attributed to a body or institution such as the local Court or the Local Authority. Whether any of the international treaties and laws apply to your situation will depend on which country the children have been brought to England and Wales.
The most commonly used international treaty by parents to recover their children in these situations is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the child abduction Hague Convention”).
The other Convention that may apply is the 1996 Hague Convention or if the country from where the children have been brought is part of the EU (except for Denmark) then the Brussels II Revised Regulation (as it is commonly known) may also be applicable.
What if I am Accused of Abduction?
It is very important that you seek specialist legal advice at the earliest opportunity, as this is a complex and ever-changing area of Family Law. You do not have to wait for the other parent to issue Court proceedings against you before you approach a specialist solicitor to find out about your legal position in confidence.
Understandably, being in this situation will be highly stressful and a time when emotions will be high, obtaining specialist advice at an early stage may help to remedy this by exploring your available options. It is important not to panic and make any concessions about the children to the other parent, as this may compromise your legal position.
If you are faced with child abduction proceedings, then you will find they will move at great speed with certain documents and evidence needing to be filed quickly.
TV Edwards LLP are well used to the fast nature of these cases and the urgency that the Court gives them. We will ensure that your case is put forward in the strongest terms notwithstanding the time constraints. This is again a reason to ensure that you have specialist lawyers.
Learn more about our Parental Child Abuduction representation services here.
What to Expect if Accused
If you have brought your children to England and Wales, you may first learn about child abduction proceedings by uniformed officers attending your home seeking to remove your and your children’s travel documents.
This is entirely standard procedure in these cases and it is important not to be alarmed by this and to comply with the request. We can make appropriate representations to the Court on your behalf at the Court hearing that will follow.
If proceedings are issued against you, you will need to consult with your legal representatives to consider your defences, if you wish to resist the children’s return to the original country. In proceedings under the child abduction Hague Convention, the defences that you may be able to argue are as follows:
- Consent
- Acquiescence
- Child’s objections
- Intolerability
- Settlement
Legal aid is available in child abduction cases, subject to your financial circumstances and the facts of your case. In reverse, you may be served with proceedings if you have removed or retained your children outside of England and Wales.
In this situation, your representatives will carefully consider on your behalf whether the English Court retains jurisdiction over the children and therefore it is important to seek advice before engaging in any proceedings.
The Prevention of Parental Child Abduction
A situation may arise which leads a parent to fear that their child is at risk of being abducted from England and Wales to another country. A relationship may have broken down, and one parent may learn that the other parent wishes to take the child back to their home country, where they originally lived.
It may be that this parent has a better support system in their home country and wishes to return to that country. It could also be that a parent learns that flight tickets have been booked for the child to travel without their consent being obtained. Threats to remove the child may have been made.
Whatever the scenario, it is very important to obtain specialist legal advice urgently to consider what steps need to be taken to minimise the risk of the child being removed from England and Wales. This is to avoid having to commence difficult Court action to try and secure a child’s return.
At TV Edwards LLP, we would suggest that a parent takes the following preventative action if it is considered that a child is at risk of abduction:
1) Ensure that the child’s passport and any other travel documents are kept safe, keep a copy of the child’s birth certificate and a recent photograph of the child and the possible abducting parent to hand;
2) It is very important that a specialist solicitor dealing in international child abduction is contacted as soon as possible so that advice regarding the prevention of child abduction can be sought.
- These cases are highly specialist and it may be necessary for urgent legal work to be undertaken. It may be that an urgent application to the Court needs to be made for an Order to prevent the child being taken abroad. In these circumstances, the Court may also respectfully request that the UK Passport Office or the Embassy of another country does not issue any travel documents in respect of a particular child.
- If your child is a Dual National, then both the UK and the other country’s authorities must be notified to minimise the risk of the would be abducting parent travelling with the child on either passport.
- A Court Order can also include a provision for the person who is in possession of the child’s passport to surrender any travel documents relating to the child.
3) Inform the police if you consider that there is a risk of child abduction. The police are able to issue an ‘All Ports Alert’ which will assist in trying to prevent the removal of a child, as the child’s details will be added on the national ports database for all UK points of departure with a warning that the child is not to be taken outside of the jurisdiction.
- The police will issue an “All Ports Alert” if it considers the risk of abduction is real and imminent. If you appoint a specialist solicitor then they will assist you with obtaining an “All Ports Alert” from the police or by way of a Court Order.
Expert Child Law Defence with TV Edwards LLP
Here at TV Edwards LLP, we are one of only a limited number of law firms in England and Wales who have the requisite expertise to conduct these cases. This is because our teams are on a panel of solicitors accredited by the International Child Abduction and Contact Unit (ICACU) for meeting the necessary standards for this complex area of work.
We regularly act for parents who consider that their children have unlawfully been removed from their home country (without their permission or permission from the local court) or that their children have been kept in another country following a temporary stay.
Conversely, we also represent parents who may find themselves accused of abducting their children. It could be, for example, that the parent who removed the children felt that they were legally entitled to do so, or may have done so as they felt they were in an unsafe situation that they needed to leave.
Legal aid is available in child abduction cases subject to your financial circumstances and the facts of your case. TV Edwards LLP have a legal aid contract and if you wished to instruct us, we would be happy to explore with you whether you may qualify for legal aid.
If you are involved in a parental child abduction or other international children law situation, then please contact Accredited Specialist Forum Shah on +44(0)203 440 8000 or email forum.shah@tvedwards.com or A_FamilyReferrals@tvedwards.com.
Alternatively, learn more about our approach to representation for this issue here.
