Abduction

 

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Habitual Residence

The United Kingdom, when it comes to law, is anything but united. In fact, it has something akin to a federal system, with a number of different jurisdictions operating under different laws passed by different legislatures, though some Acts passed at Westminster apply to all of them.

The various jurisdictions within the British Isles are: England and Wales, Scotland, Northern Ireland, Jersey, the Bailliwick of Guernsey and the Isle of Man. Each has a distinct legal system, and this can cause confusion when a child is taken from one to another.

In legal disputes concerning children, the relationship between the constituent parts of the British Isles is governed by the Family Law Act 1986. The Act defines the United Kingdom as England and Wales, Scotland, and Northern Ireland, with the other islands (and "any colony") coming under the heading of 'dependent territories'.

Part I of the Act deals with 'child custody' and restricts its effect to situations where an order under section 8 of the Children Act 1989 (or its equivalent) in respect of custody, contact or education is in force or where an order has been made under the inherent jurisdiction of the High Court. Any such order made in any of the jurisdictions must be recognised by the other jurisdictions and have the same effect within them (except where the order concerns enforcement, in which case it must first be registered in the jurisdiction concerned).

Under the Act (insofar as it relates to children) a major consideration is that of the child's 'habitual residence'. Under section 41 of the Act the child will be treated as being habitually resident in the original jurisdiction for a period of one year unless there has been agreement from "all persons having, under the law of that part of the United Kingdom or that territory, the right to determine where he is to reside". So, unless there is a Residence Order in force, an application can be made for the child's return in the first twelve months.

There is an additional problem however if the parents were not married and the father does not have Parental Responsibility.
Section 2 (2) determines that: "a court in England and Wales shall not have the jurisdiction to make a section order in a non matrimonial case unless the condition in section 3 of this act is satisfied".

Section 3) states that on the date of application: "the child concerned -
b) is habitually resident in England and Wales: or
c) is present in England and Wales and is not habitually resident in any part of the UK or a specified dependent territory"

It is also possible to apply in any jurisdiction for an order restricting the removal of the child from that particular jurisdiction (e.g. a Prohibited Steps Order in England and Wales) subject to consent of the court. The test of habitual residence does not apply under the Act where the child has reached the age of sixteen.

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Overseas Holidays

If you have Parental Responsibility and there are no restricting orders in force then you have equal legal status with the other parent and can in theory take your child anywhere you like on holiday.

Under the Child Abduction Act 1984, however, it is an offence for any person to take a child out of the UK without "appropriate consent". The prior agreement of the other parent is always desirable.

If you have a Residence Order in your favour you can take the child out of the UK for up to one month without seeking consent from anyone (though anyone else can apply for a Prohibited Steps Order to stop you if they know of your intentions).

If there is a Residence Order in favour of another person then you cannot remove the child from the UK unless you have written consent from every other person who has PR or have obtained leave of the court (e.g. by Specific Issues Order).

Where both parents have PR and there are no restricting orders in force then each is expected to obtain consent from the other parent before taking the child out of the UK or face possible prosecution for abduction and/or an application under the Hague Convention (see below) for the child's return to the jurisdiction.

To holiday abroad you will also need a valid passport for the child. New rules on Child Passports came into force in 1998 - children can no longer be added to a parent's passport but are issued with their own. Any person with PR can apply (but must notify all others with PR, who may object).

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Abduction

Section 1 of the Child Abduction Act 1984 states that:

(1) ...a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.
'Appropriate consent' broadly means permission from everyone who has PR for the child or (where this is refused) leave of the court. Any prosecution under the Act requires the consent of the Director of Public Prosecutions. The maximum penalty for a conviction is seven years imprisonment.

Defences to a prosecution under the Act include a belief that consent had been or would have been granted, that consent was not obtainable by reasonable steps (e.g. where the other parent could not be contacted), or that consent was unreasonably withheld (except by someone who has a Residence Order or 'custody' of the child).

A selection of Case Reports can be obtained from Hilton House. See also the U.S. State Department pages on international law.

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Return to the Jurisdiction

If a child for whom you have Parental Responsibility is taken to live abroad without your consent or in breach of a court order you may apply to have him/her returned under the Hague Convention, as enacted by the Child Abduction and Custody Act 1985, if he/she has been taken to a contracting state (see List of Signatories below) or go to the Hague Conference website.

A return to UK jurisdiction will enable you to have the case heard in the UK courts. Note that the Hague Convention does not apply to cases within the UK (e.g. England to Scotland, Northern Ireland, Jersey etc) even though the legal systems are distinct and separate in each country.

Read the Law Report (The Times 23-Feb-1999) on returning children under the Hague Convention.

In some circumstances the stated feelings of the child(ren) involved can circumvent the normal operation of the Convention. Read the Law Report (The Times 24-April-2000) on exceptions under Article 13.

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Removal from the Jurisdiction


Permission for permanent removal of a child from the jurisdiction may be granted by the court under the Children Act 1989. The leading case is still Poel v Poel, a 1970 Court of Appeal decision which almost always allows the mother to relocate the child abroad.

The procedure involves applying for a Specific Issues Order on a standard Form C1. The criteria for a successful application for leave to remove are that the custodial parent's proposals can be shown to be 'reasonable' and 'realistic', and are consistent with the child's welfare.

The wishes of the child are considered in the light of his/her age and understanding. Though the court has wide discretion, the views children aged 11 and upwards normally exercise greater influence on the outcome. A teenage child who refuses to board a plane is unlikely to be forced to do so.

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Further Information


See the Shared Parenting Information Group pages on removal from the jurisdiction.

See also the FNF page on Child Passports.

Parents & Abducted Children Together (PACT)

You may also wish to contact Reunite (International Child Abduction Centre)

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List of signatories to the Hague Convention: Abduction

Argentina
Australia
Austria
Bahamas
Belize
Bosnia Herzegovina
Burkina Faso
Canada
Chile
Colombia
Croatia
Cyprus
Czech Republic
Denmark
Ecuador
Eire
Finland
France
Georgia
Germany
Greece
Honduras
Hungary
Iceland
Israel
Italy
Luxembourg
Macedonia
Mauritius
Mexico
Monaco
Netherlands
New Zealand
Norway
Panama
Poland
Portugal
Romania
Slovenia
South Africa
Spain
St Kitts and Nevis
Sweden
Switzerland
Turkmenistan
U.K.
U.S.A.
Venezuela
Yugoslavia
Zimbabwe

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The following are signatories to the European Convention on Recognition and Enforcement of Decisions concerning the Custody of Children and on the Restoration of Custody of Children.


List of signatories to the European Convention: Custody

Austria
Belgium
Cyprus
Denmark
Eire
Finland
France
Germany
Greece
Iceland
Italy
Liechtenstein
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain

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You can find out more about the Hague Convention here.

 

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