Abduction

In an increasingly small world families can often be made up of people from various different countries. This can cause unforeseen complications where the family breaks down. One parent may want to return to his/her original country whereas the other parent wants to remain in the new country in which they have made their home.

If one parent takes a child away from the other parent, or takes a child out of the jurisdiction of the child’s country of habitual residence, without the consent of everyone with parental responsibility, then that parent can be said to have “abducted” that child. This is known as “unlawful removal” from the jurisdiction.

An “unlawful retention” occurs where a parent keeps a child in another country without the consent of all persons with parental responsibility, for example, if a child is not returned after a holiday abroad. This may also constitute child abduction.

I recently dealt with a case involving a father and mother from an eastern European country. They and their 2 children had come to live in England. The parents agreed that the mother would take the children on a holiday to visit their family in their home country. The father remained in England and expected the children and the mother to return home to him at the end of the 2 week holiday.

The mother did indeed come back to England, but she left the children with her family in her home country. When she returned, she refused to tell the father where the children were. She left the family home and would not tell the father where she was going.

The father sought legal advice with regard to the children being unlawfully retained out of this jurisdiction. As both parents had been and were living in England and intended to remain here indefinitely, the children’s “habitual residence” was also England. This meant that the High Court in this country had jurisdiction to deal with an application relating to these children.

We referred the case to the “Child Abduction and Contact Unit” to ensure that an application would be made for the return of the children in the country where they were staying.

At the same time, we were able to assist the father in obtaining Orders from the High Court in this country firstly to locate the whereabouts of the mother, then to seize her passport. The mother was ordered to attend a further Court hearing to confirm the whereabouts of the children and the reason for them being kept there.

The children were made Wards of Court and the High Court made a declaration confirming that the children had been unlawfully retained out of this country. The Court therefore made an Order allowing the father to travel to get the children and bring them back to England with him. The country in which the children had been retained had signed up to the “Hague Convention”. This convention sets out a clear procedure to be followed when applying for children to be returned home.

We arranged for the Court Order to be translated so that the father could show a copy of the Order to the mother’s family and/or the authorities in the other country when he arrived to collect the children.

The father therefore traveled to collect and return the children to England and thereafter we have advised the father about issues of residence and contact.

In this case, the father had to react to the mother abducting the children. However, as always, prevention is better than cure.

We can also assist in obtaining preventative orders to stop a child from being abducted in the first place. This could either be by obtaining a Prohibited Steps Order or Residence Order at a local court or by making the child a Ward of Court in the High Court.

If you are concerned about potential child abduction, if your child is at risk of child abduction or if this has already happened, it is essential to see a specialist advisor who knows what order to obtain from the courts to ensure the best protection is obtained as quickly as possible.

If the child has already been abducted from a person with parental responsibility but remains in this country, we can advise with regard to making an application for orders to locate and then return the child home.

In cases where a child has already been taken out of the country, the remedy will depend on the country where the child is currently staying.

Only certain countries have signed up to the “Hague Convention”.

We can advise and assist you about this procedure and making an application to the High Court in England for a declaration that the child was wrongfully removed from this jurisdiction. This will assist in obtaining an order in the other country for the child to be returned.

As well as applying to the High Court, we can liaise with the Child Abduction and Contact Unit to ensure that an application is made for the return of the child in the country where the children are currently staying.

If the country where the child is staying is not a Hague Convention Country you must take specialist advice about the best way to recover your child. The action to be taken in that case will depend upon the country involved.