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Tougher on abduction

We have written in previous blogs about the family courts adopting a tougher stance towards people who flout orders, fail to disclose their financial positions, or otherwise duck their responsibilities to each other and the court as separated spouses or parents. Continuing the trend, this week has seen two news stories concerning international child abduction and the family court’s response.

As a quick reminder: to take a child overseas after separation or divorce, you need the consent of all holders of parental responsibility or the leave (i.e. the permission) of the court. Taking a child abroad without the consent of both parents or the permission of the court can amount to child abduction. Strictly speaking, child abduction can take two forms: taking a child from one country to another, or ‘wrongful retention’, where a child is kept in another country, for example at the end of an agreed holiday or period of time with one parent.

The remedy for international child abduction is to make an application under the Hague Convention on Child Abduction for the return to the country of the child’s habitual residence. Interestingly, unlike most of the other laws relating to children that apply in this country, under the Hague Convention the child’s welfare is not the paramount consideration. The Convention regulates which country has the jurisdiction to decide where the child should live, namely the country where he or she was habitually resident before the abduction, and this is a question of fact. The Convention provides for a return of the child to that country to allow the domestic courts to decide whether it is best for the child to live in that country or elsewhere.

If a child has been taken to or is being wrongfully retained in a country which is a signatory to the Hague Convention (presently there are 93 signatories), there are legal and practical mechanisms in place for international cooperation in returning the child to his or her home country. However, the situation is a whole lot trickier when the child has been abducted to a country that is not a signatory to the Convention.

Returning to the recent news stories, the first is about a mother who fled abroad with her two children following a court ruling that they should live with their father. At the hearing, she was ordered only to have supervised contact with the children, aged 2 and 7 due to concerns about her. In May she and the children were taken in a chauffeur-driven Mercedes to Charles de Gaulle airport in Paris, from where they boarded a flight to Madrid before getting another plane to Costa Rica. The mother was aided in her plans by her own parents, the children’s grandparents. Police in Costa Rica were subsequently alerted and the children were taken into care in Costa Rica after they were found roaming their hotel alone.

The children’s stepmother and a social worker flew to Costa Rica to make the application under the Hague Convention for the children’s return to England. They have now safely been returned, although the mother is believed still to be in Costa Rica. The grandparents initially lied about their involvement, claiming not to know the children’s whereabouts. As is often the case these days, mobile phone data, in this instance text messages, provided evidence of their actions. They were prosecuted and admitted child abduction and attempting to pervert the course of justice. The grandmother was sentenced to 14 months imprisonment, and her partner to a year’s imprisonment, by Wolverhampton Crown Court.

This is a really sad case, where it seems that everyone did what they did out of love for their family, but it nonetheless demonstrates that the court will not stand by whilst its orders are flouted and will prosecute those who are involved in the abduction and wrongful retention of children.

The second case concerns children who are still missing. In order to help locate them a judge has lifted the anonymity which usually attaches to family proceedings. Theses two young brothers were the subject of child protection plans, and are known to the social services in Sussex. It appears the mother and her husband, who is father to the younger boy, have taken the boys to northern Cyprus, which is unfortunately not a signatory to the Hague Convention. The older boy’s father did not consent to his removal from this jurisdiction and so the move to Cyprus amounts to an abduction. The judge in the case ordered the mother to return the children and said he has grave concerns for the boys’ welfare, hence the unusual step of allowing reporting of their names and pictures – you can see the BBC report here.

If you would like to speak to any of us about any aspect of family law, please get in touch on 01223 443333.