International child abduction is a very specialist and complicated area of family law. How quickly interventions take place can make a lot of difference in these cases, which is why it is important to get expert advice as soon as you are aware this may be an issue, even if the abduction has not already taken place.
International child abduction occurs where a child is removed from one country and taken to another without the permission of relevant parties or the courts. There are a variety of reasons why child abduction can take place- one of them being where a relationship between the parents breaks down.
There are various laws that deal with the issue of international child abduction but the one that is most generally used is the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention). This in an international treaty that has been signed by various countries, including the UK. A full list of the signatories can be found here.
To be able to file a case under the Convention for the return of a child, the following needs to be shown:
The child was habitually resident in in the original country at the time of the alleged removal or retention. Habitual residence is essentially where the person lives and spends most of their time. The court will consider where they go to school and usually live to determine this.
The removal or retention of the child is wrongful
The child is under the age of 16 year.
What country the child is currently in
That the Hague Convention is in force between the country where the child is and the country where the child was taken from.
It is important to note that the Hague Convention does not apply between the UK and British Overseas Territories.
If the relevant countries involved are not signatories to the Hague Convention, then there are alternative options, and our expert children legal team can explain these to you.
The Hague Convention covers both the wrongful removal and wrongful retention of the child, though it is important to note that these are two distinct concepts:
Wrongful removal regards the situation where a child is taken out of their country of habitual residence without the consent of both parents or a court order
Wrongful retention of a child concerns a child who is kept in a country outside of their habitual residence without the consent of both parents or a court order. Wrongful retention normally occurs where one parent agrees to the child leaving the country of habitual residence for a short period of time with the other parent, who then decides to keep the child there permanently.
The distinction between these two concepts is important because, in England and Wales, the wrongful removal of a child under the age of 16 years from the UK to another country constitutes a criminal offence under the Child Abduction Act 1984. Conversely, the retention of a child in a country outside of England and Wales does not form an offence, and so can only be resolved through an application under the Convention.
There are certain defences to child abduction that can be put forward:
If the parent applying consented to the removal (or subsequent retention) of the child in advance. This is why it is advisable that any agreement is always done in writing
The parent making the application was not exercising their rights of custody before the abduction (so was not actively involved in their life before the removal or retention)
If there is a grave risk that the return of the child would expose the child to physical or psychological harm, or otherwise place them in an intolerable situation. This reflects the objective under the Convention to prevent further harm to the child
The child may object to returning though the court will need to be satisfied about their maturity and understanding as well as their reasons for the decision
Where more than one year has elapsed since the child’s wrongful removal or retention and the child is settled in their new country
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.