Abduction in Family Court Proceedings

Child abduction occurs when a parent takes a child out of the country for longer than 28 days without the permission of those with Parental Responsibility or the permission of the Court.  

There are two ways in which a child travelling abroad with a parent can be unlawful.  

1. The child has been removed from the country in which they are living and settled by one parent, without the consent of the other parent and without permission of the court; or 
2. The child is wrongfully retained in another country. For example, where the child and parent do not return from an agreed holiday.  

The 1980 Hague Abduction Convention was introduced to protect children from the effects of international abduction, to bring about their prompt return and retain the rights of access. The convention involves a list of countries that have agreed to share the same international law to aid in getting the child back to their country of habitual residence. Abduction to a country not on this list is dealt with differently and our expert solicitors are able to advise you on this. 

As an applicant in Hague Convention proceedings, you automatically are awarded legal aid. The International Child Abduction and Contact Unit (ICACU) will assist in referring you to a Lawyer in the country you believe your child is now residing.  

It is important to note that these are not welfare proceedings, and the priority of the Court is to determine which country has jurisdiction. This is the country that the child is habitually resident before the removal/retention occurred. To prove a child is habitually resident in a particular country, you must show a ‘settled intention’ to stay in that country. For example, attending school in that country and being enrolled with the local doctors and dentist are possible arguments.  

Proceedings are always issued with the High Court on an urgent basis. Certain orders can then be requested dependent upon the circumstances, to assist in the finding of the child’s location and seize any passports and travel documents if necessary, to prevent the risk of further travel to another country. 

For a respondent – the parent who travelled with or retained the child – in these proceedings, there are a limited number of defences available to prevent the child being ordered to return to the country in which the child was previously living. These include:  

1. Settlement – where the child has lived in the country for longer than 12 months before the other parent issues proceedings  
2. Consent – where the other parent either explicitly agreed to moving the child or their words and actions were unequivocal and clear to suggest that they did consent  
3. Acquiescence – where the other parent agrees or consents to the child remaining in that particular country, for example helping with nursery fees or finding a school for the child  
4. Grave Harm – the court has discretion not to order the return of the child if it would be to an intolerable situation that could cause grave harm 
5. Child Objections – the child must be old enough to have the capacity to make decisions and they must express that they do not want to return to the specific country.  

 

Your Lawyer will advise you on your prospects of success. However, if neither one of the defences can be proven, the Court will order the immediate return of the child to the country they are habitually resident. It will then be the job of the Court in that country to determine any welfare issues, such as where the child should live.  

It is therefore important to seek advice from a Lawyer in the country which you plan to leave to understand the potential ramifications if you are ordered to return. In some countries, removing a child from the country they are settled in without the other parent’s consent or the consent of the court is a criminal offence. 

There is also the opportunity to apply for contact with a child who has moved to another country. This option is available for a parent who may not seek the return of the child but would like regular contact. Legal aid is available for contact cases.