Child Abduction

There are dedicated laws in place to address child abduction. The aim is resolve (as quickly as possible) whether the child should be returned home — and if so, whether any conditions apply. It's important to note that separately abduction (whether removal or retention) can be a criminal offence, as well.

The most significant law covering child abduction is the 1980 Hague Convention on Child Abduction. The Hague Convention covers in the region of 100 countries and sets out a uniform way in which applications should be dealt with. In some countries, the Hague Convention will supplemented by the 1996 Hague Convention or European legislation. There are also specific arrangements and protocols with some countries that aren't a party to the Convention. If the Hague Convention doesn't apply, the case will usually be dealt with under the Inherent Jurisdiction of the High Court. 

Abduction proceedings are different to standard children proceedings. They don't consider the merits of different arrangements or each parent in the same way, instead focusing on whether the child has been removed from their home state — and if so, whether they should be returned even if there'll then be further proceedings in the home country to decide what the long term arrangements should be. This is known as 'summary return'.

If a case is dealt with under the Hague Convention, legal aid is available for the 'left behind' parent. Whether or not the alleged abductor qualifies for legal aid will depend on a range of factors, including financial means. 

Child abduction proceedings usually move quickly and hearings can take place on short notice. Time is often of the essence and documents may need to be prepared quickly. Abduction/Inherent Jurisdiction proceedings always take place in the High Court.

Most cases start with an application for summary return. This is a request that the child is returned to their home country as soon as possible. Where necessary, additional preliminary applications can be made to help locate a child — for example, using government, mobile phone or banking records or for all travel documents to be seized to prevent onwards flight.

Usually, the application will be made in the country the child has been taken to (or retained in). Yet in some cases, the application will be made in the original home state.

An application for summary return will set out the basis on which it's claimed that an unlawful removal or retention has occurred. The parent who has taken the child will then need to confirm whether or not they seek to defend the application. 

There are limited defences available. These are strictly defined and include (in simplified terms):

• Lawful move — arguing that the move wasn't unlawful or that the left behind parent didn't have the relevant rights (known as rights of custody).
• Grave harm — concern that the child would be placed in an intolerable situation or at grave risk of harm if returned (this can include allegations of abuse).
• Consent — where the words or actions of the left behind parent were sufficient to show that they agreed to the move.
• Acquiescence — where the words or actions of the left behind parent may not be so high as consent but still amount to a level of acceptance of the situation.
• Settlement — where a child has been in the ‘new’ country for over 12 months before the proceedings are issued.
• Child’s objections — the child has strong and valid reasons for not wanting to return and is deemed to have sufficient understanding to form that opinion. 

Depending on whether any defences are run — and if so, which one(s) — the court will hear technical legal arguments and receive written evidence from the parties before making a decision on whether or not the child should be returned. Despite the serious nature of abduction proceedings, the court doesn't always hear oral evidence from the parents — whether this is permitted will depend on the circumstances of the case. It's common for left behind parents to attend hearings remotely if they need to. However, in some circumstances legal aid can assist with the costs of travelling to court. Depending on the issues in the case, the court may also receive a report from Cafcass and/or the child may be separately represented. 

The court can order an immediate return or make a return subject to certain conditions (including protective measures where domestic abuse has been an issue). The court can refuse to make a return if a defence is successfully run. Any return is usually ordered to take place quickly after the order is made. Our specialist team has acted in a number of significant cases addressing whether a return should take place and if so, on what terms.