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.
The word “abduction” seems to be an unfortunate label in a situation in which a parent has had to flee with his or her 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, something that may be lacking in the country in which the relationship has subsided. 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 it was 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, they will for the most part, only do so believing it to be in their children’s best interests.
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, this 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 from which country the children have been brought to England and Wales and TV Edwards LLP can provide you with advice about this. 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.
Therefore, what is the best course of action if you are 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 ameliorate 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 and 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.
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.
TV Edwards LLP are one of only a limited number of law firms in England and Wales who have the requisite expertise to conduct these cases. We will go through all options with you and if proceedings are issued against you then we will consider in detail what defences may be available 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. 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.
In reverse, you may be served with proceedings if you have removed or retained your children outside of England and Wales. In this situation we 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.
If you are involved in a child abduction or other international children law situation then please contact Mandeep Gill or another of our specialist team on +44(0)203 440 8000 or email A_FamilyReferrals@tvedwards.com
