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The Law Relating To Children

Child Abduction Q&A

Child Abduction Q&A

In 2011 and 2012, the Child Abduction Section of the Foreign and Commonwealth Office answered FNF members' questions on how abduction cases are handled, and what support is available for parents affected by this issue. There is often a spike in cases of abduction around school holidays, particularly at Christmas. Below, you can find answers to questions posed by FNF members in previous years which you may find useful.

You can contact the Foreign and Commonwealth Office on 020 7008 1500, 24 hours a day, seven days a week. Visit https://www.gov.uk/international-child-abduction for more information, or read the FCO’s advice leaflet here.

You can also email childabduction@fco.gov.uk.

The questions and answers have been decided into several categories below. Simply click on the one that interests you to navigate to the questions on that topic.

Handling of Cases

Why is child abduction from the family home not considered a serious crime, even when it happens locally, and when 2 years later the father is cleared beyond a shadow of a doubt of the usual allegations of violence that were calculated to provide a rationale for such abduction?

  • Thanks for raising some important questions. It is a crime in England and Wales for a parent to take a child out of the country without the permission of the other parent or the courts. If you believe a child abduction has taken place you should immediately speak to your local police. If your local police would like advice on when child abduction is a crime, Child Abduction Section would be very happy to speak to them - you can pass on our helpline number which is 020 7008 1500.

Why is child abduction downplayed using the word 'retention' when the child does not return from a trip on the date specified in a court order or agreed with by the parents? Does this sick manipulation of language not serve to contribute exponentially to the abduction crisis?

  • The word ‘retention’ is used to differentiate between cases where the left-behind parent initially gives permission for the child to leave the country and those where they don’t. However I recognise that the impact of a parent removing a child from the UK and refusing to bring them back is often the same whether the case is categorised as an abduction or a retention. In practice we would offer the same level of support to a parent whose child had been abducted as one whose child had been ‘retained’. You might be interested to know that we would record both scenarios as an ‘abduction’ on our filing system.

Abduction & UK Law

Why is abduction tolerated when it is a mother committing the offence, but not a father?

  • Child Abduction Section sees cases involving both mothers and fathers as the abducting parents. We treat all parents equally regardless of gender, race, religion or any other factors. If you believed you had not been treated fairly by the UK police or courts because of your gender, you would need to pursue the matter through a lawyer.

Is it not the case that the the absolutely awful uphill struggle of fathers in the family courts contributes to the vast majority of child abductions by fathers? Is it not the case that the prospect of litigation in family court hell is also the motive for mothers to abduct?

  • This is a question for the UK courts rather than the FCO as we have no involvements in court proceedings. If you have questions about how the law is applied in the UK, you could try contacting the Ministry of Justice.

Is it not the case that Leave to Remove is effectively Leave to Abduct where the child welfare principle is concerned?

  • Again this is a question about the law rather than the work of Child Abduction Section. If this relates to your own situation, you should discuss the matter with a lawyer. If it is a general question, you could try approaching the Ministry of Justice.

I am one of the many dads who do not see their children (not for the want or trying!) but I wanted to ask you this.

 

My ex managed to get my childrens names changed by lying and saying she did not know my wareabouts nor did she know how to contact me. This was during contact I had with her solicitor who sent me the form asking for permission and I refused.

 

Could she take the children out of the country by spinning the same lie? She does not know where I live but knows how to contact me - She just chooses not to. She also knows where my parents live and chooses not to contact them either.

 

I worry she will try this. And plead that as a victim it would be in the children interests.

 

  • Thank you for writing in with your questions. Under the UK 1989 Children Act the court can make an order to change a child's surname where there is a residence order in place. It appears that in your case the mother of your children has a residence order. Where there is a residence order in place, the law says that the person in whose favour the residence order was made may remove the child from the UK for a period of less than one month.

If you are concerned that your ex-partner might try to take your children out of the country for longer than one month without your agreement you should report this to the UK Police. Your solicitor should also be able to advise you if the removal of the children for longer than one month would be in breach of a court order.

If you are concerned that your ex-partner might apply for passports for your children you should contact the Identity and Passport service enquiry line on 0300 222 0000 (Monday – Friday, 0800- 2000). IPS can give you more information on how to prevent your children being issued with travel documents if they do not have them already. If your children are eligible for foreign passports you should write to the relevant foreign embassy in London to ask for their help in not issuing passports to your children if they do not have them already.

Your solicitor can also advise you on what legal steps you can take to further prevent the possible abduction of your children, including getting a prohibited steps order or a specific issue order.

If you have any more questions or would like to discuss your situation in greater detail you can call the Foreign and Commonwealth Office on 020 7008 1500, 24 hours a day, seven days a week, or contact Reunite, a UK charity which specialises in handling child abduction cases. The Reunite advice line number is : 0116 2556 234.

The Hague Convention

How effective can UK and international processes of return be if the Hague Convention Article 13(B) defence, ie the child refuses to return, is used?

Is this more or less effective if the parent makes the claim or if the child makes the claim through thier own legal representation?

If such a defence is used and/or a case filed in a foreign Court about it, will support be offered or is it up to the "left-behind" parent to fight it out in that Court?

How long would such cases be likely to take? Is it faster in European countries? Is there anything that can be done to speed up the process?

 

Support for Parents

At what stage is support offered to a "left-behind" UK parent?

 

Is this at the point where a non-UK resident parent says that they don't want to follow a UK Order and prevents the children from having an Ordered contact session?

 

Is it at the point where a non-UK resident parent says that they won't be coming back to the UK because they don't want to when there is no Order already in place?

 

Is it at the point where a non-UK resident parent says that they won't be coming back to the UK because they don't want to when there is already a UK Order already in place?

 

Or does it have to be at the point where the child has been abducted and taken out of the UK without consent?

  • Child Abduction Section offers support to a parent when they contact us and ask for a help. We have no way of knowing a parent is facing difficulties until they contact us. However, once they are in touch we will try to do whatever we can to advise and assist the parent. The exact assistance we offer depends on the person’s situation. For example, we give prevention advice to parents who are worried that their children will be taken out of the UK without their permission, but would talk through options for pursuing the return of their child to a parent whose child had already been abducted.

Can you confirm what level of financial support is available to a parent whose child is abducted abroad in terms of:

 

A) solicitors' and other legal costs in applying for, and the enforcement of a return order under the Hague Convention for the Civil Aspects of International Child Abduction? and

B) travel and accommodation costs to the country where the child had been abducted to?

 

Does this differ in the case of retention abroad?

 

Will any current financial support/legal aid be affected by the spending review?

 

Is legal aid in this area means tested, and is disposable income realistically linked to the cost of travel, accommodation and legal fees abroad?

 

If financial support/legal aid is not available, or will be cut, should the state not bear some responsibility for the safeguarding and recovery of British children abducted abroad?

 

If financial support/legal aid is not available, or will be cut, is it acceptable or lawful that only the wealthy have the means to recover an abducted child?

  • The FCO doesn’t deal with legal aid in the UK or overseas although I realise this is an important question for many parents involved in child abduction cases. You should contact the Legal Services Commission to find out the answers to your queries.

On Easter Saturday in 2010, I was contacted by a parent who feared the imminent abduction of his child by the mother to a non-Hague country. He had called the police who had told him they could not help him until the Tuesday (Monday was also a bank holiday).

 

I recommended he contact the ICACU, but he was told that there was only a skeleton staff in the department on a bank holiday weekend, and no-one with the training to assist or advise him.

 

In the end, we managed to get a prohibited steps order at midnight via the Principle Registry, but it astonished me that neither the police or ICACU had anyone on hand to assist in an emergency. It was down to me to contact the court of his behalf and set up a telephone hearing.

 

My questions are therefore these:

 

What should a parent do if he fears his child is at imminent risk of abduction on a bank holiday weekend?

Can the ICACU put in place adequate trained staff to give 24/7 support for emergency situations, and should the police also not be doing so?

Was the level of cover in Easter 2010 typical, or was the parent unfortunate?

  • The FCO’s Child Abduction Section is separate to ICACU so unfortunately I’m not able to respond to your query about ICACU staff resources. However ICACU did tell me that their office hours are 9am-5pm, Monday to Friday. Out of hours callers can leave a voicemail for ICACU or, if their query is very urgent, ring the Reunite emergency number via 01162 556234. If you’d like a more detailed response you should contact ICACU directly (details given in response to Jason’s question above) to find out the answer to your question.

I noticed that the case you mention above involves an abduction to a non-Hague country. In this case the person the person should contact the Child Abduction Section at FCO as we lead on cases in non-Hague countries. Our helpline number is 0207 008 8737 and operates 9.30am – 5.00pm, Monday to Friday. Outside of these times you can leave a voicemail which we’ll respond to in office hours. British Nationals overseas in need of urgent consular assistance out of hours can speak to a members of consular staff via the main FCO switchboard – 0207 008 1500. Anyone in the UK who fears their child will be abducted imminently should contact their local police.

Regarding legal aid, and financial assistance for foreign legal fees:a] Does legal aid cover Hague Convention and Bis II applications for the return of the child, or are parents dependent on the legal aid provision available in the country to which the child has been abducted?

 

b] If legal aid in the UK does exist, will it still be available following the cuts planned for April 2013 (this is not a question about future policy, but the actual legal aid provision which is decided following the cuts)?

 

c] Is there any financial assistance available from the Government to cover parents' foreign legal costs where a British child is abducted to an non-Hague country (or Hague Convention signatory state where the Hague application is the subject of appeal in the foreign country... e.g. under the amparo system in Mexico).

  • Legal Aid provision is made in line with the requirements of both conventions, in broad terms meaning provision is made in relation to the recognition and enforcement of maintenance agreements within signatory country's jurisdiction. An application made in a UK court will therefore be in scope. An application made within another signatory country will be funded by that state, subject to the scheme operated by that country. This will continue to be the case after the legal aid reforms are implemented in 2013. In relation to your question about parent's foreign legal costs, in general terms no funding will be available under the legal aid scheme.

 

Enforcement of Orders

An Order made in a UK Court is meant to be enforceable under Brussels 2. However, once a child taken to another country becomes resident there, usually after 91 days, what safeguards can be put in place to uphold the UK Order?

 

UK caselaw allows it that if a foriegn Court then makes any Order then this overrules and nullifies the UK Order. If the UK resident parent is not notified of the new proceedings, either by design or by accident, or they are unable to travel internationally at short notice, then it is straightforward to present a one sided view in the foreign Court.

A lack of balance can easily be used to one side's advantage - there has been evidence that this is used to prevent the contact that has been promised to a UK Court.

 

Are there any safeguards currently in to prevent this? Can any safeguards be put in place? Is there any help offered to "left-behind" parents in the UK in this situation?

  • Jason, you would need to speak to a lawyer about this question as Child Abduction Section is not able to give technical legal advice. We work closely with a charity called Reunite, who have a list of lawyers on their website who specialise in this area. This might be a good source of information for you.

The UK / Pakistan Protocol was never ratified under Islamic law, which limits its efficacy. Are there any plans to negotiate with the Pakistan Government to have an international agreement which places a statutory obligation on the courts of Pakistan to return an abducted child to the UK?

We work closely with the Pakistani Government to ensure the UK/Pakistan Protocol is considered by Pakistani courts ruling on parental child abduction cases. We also continue to encourage the Pakistani Government to the 1980 Hague Child Abduction Convention, an international agreement which seeks the return of abducted children to the place where they normally live. The decision on whether or not to return the child is made by the court in the country where the child is.

Case Outcomes

Why is it the case that children abducted by mothers are rarely united with fathers, whereas children abducted by fathers are almost always reunited? (Statistics should show me to be correct in this inference.) Shouldn't greater gender equality be exercised across the board on these matters.

  • We don’t maintain statistics about the number of children who are returned to a left-behind parent, mainly because the outcomes of the cases we deal with are often complex and we are not always told when a child is returned. Therefore I can’t confirm the statistics you refer to. Anecdotally, looking at recent returns we are aware of, there seems to be no trend of children being returned more often to mothers than fathers. As I mentioned above we deal with both mothers and fathers and offer the same service to both. Gender is never a consideration when we decide what assistance we can offer a parent.

What proportion of abducted AND retained children are recovered from:

 

1) Brussels II member states?;

2) Hague Convention member states (outside of the Euro zone)?;

3) Pakistan (in light of the UK/Pakistan Protocol?;

4) Mexico (given difficulties concerning Mexico's amparo system)?.

 

Given the ICACU's previous case experience, how long would a parent anticipate a return taking (based on historic statistics) for each of the above?

  • Thanks for your question Michael. We don’t maintain statistics on the number of children returned to the left-behind parent. This is for a couple of reasons. Firstly, we are not always told when a child is returned; as you may imagine the whole episode can be extremely distressing for a family and they often just want to ‘get on with’ their lives and not talk to other people (including us) about it. Secondly, the outcomes in such cases are often complex and we don’t necessarily judge whether a case is successfully resolved by whether the child is returned. Sometimes parents come to an agreement, e.g. about contact, which doesn’t involve the return of the child but is in the best interests of the child and acceptable to both parents. I hope this explains why we don’t have the data you’re after.

I can give you some figures on the numbers of abductions we deal with. It’s worth bearing in mind that we can only record the cases we’re aware of and I have no doubt that there are many more cases which aren’t reported to us. During the last financial year (2010-11) we dealt with 55 cases in Pakistan and 10 in Mexico, although Mexico is a Hague Convention country so we aren’t involved in all of the cases which are reported. You also asked about statistics for Hague Convention countries (which includes most of Europe). As I mentioned in my response to Jason, Child Abduction Section doesn’t lead on cases in Hague Convention countries; they are dealt with the International Child Abduction and Contact Unit whose details are given above.

Since child abduction is a criminal offence under the Child Abduction Act 1984, has there been successful extradition between the UK and the country of abduction, where the country isn't party to the Hague Convention, but where an extradition agreement exists?

  • There have been a number of successful extraditions to the UK in international child abduction cases. However, the return of an abducting parent does not guarantee the return of an abducted child. In a non-Hague country a left behind parent may still need to fight for custody of the child through the foreign courts. The Serious Organised Crime Agency (SOCA) is responsible for European Arrest Warrants and the Home Office is responsible for non-EU extradition. If you have further questions on extradition you can contact the Home Office directly at extraditionpolicysection@homeoffice.gsi.gov.uk.

 

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