International Child Abduction

What Counts as International Child Abduction

The 1980 Hague Convention treats a removal or a retention as wrongful where it breaches rights of custody held under the law of the country in which the child was habitually resident immediately before it, and where those rights were actually being exercised. Rights of custody is the Convention's own term: it covers the care of the child and, in particular, the right to decide where the child lives, and it can come from the law itself, a court decision or an agreement having legal effect.

A parent with parental responsibility here has rights of custody. Practice Direction 12F says an unmarried father without it may still have them where, immediately before the removal, he had been exercising parental functions over a substantial period as the only or main carer, but the country asked to return the child decides that.

Keeping a child abroad after an agreed holiday is as much a ground for a return application as taking the child in the first place, because the Convention covers retention as well as removal.

For a parent or other person connected with the child, taking or sending a child under 16 out of the United Kingdom without the appropriate consent is also an offence under section 1 of the Child Abduction Act 1984, and a suspected offence is one of the grounds for a port alert. There are limited exceptions and defences, which our taking a child abroad page sets out. Criminal proceedings are for the police and the Crown Prosecution Service, not work we take on.

The Legal Test for a Return Order

The Convention has the force of law here through the Child Abduction and Custody Act 1985. Where proceedings begin less than a year after the wrongful removal or retention, Article 12 requires the court to order the child's return forthwith. Where they begin after a year, the court must still order a return unless it is demonstrated that the child is now settled in the new environment. The limited exceptions in Article 13 can be raised whenever the application is made, and under Article 18 the court keeps the power to order a return even where an exception is established.

A return order is not a decision about who the child should live with: Article 19 says so, and, once it has notice of the wrongful removal or retention, Article 16 stops the court in the country the child was taken to from deciding the merits of rights of custody until it has been determined that the child is not to be returned, or unless a Convention application is not lodged within a reasonable time after that notice. The question is which country's courts decide the arrangements.

The Convention applies only while the child is under 16, and between the United Kingdom and another country only from the date set by Order in Council under section 2 of the Child Abduction and Custody Act 1985. The HCCH status table for the 1980 Convention lists the parties and the acceptances of each accession, so appearing on it does not by itself mean the Convention is in force between that country and the United Kingdom. Where a child has been brought here and the Convention does not apply, the return application is made to the High Court under its inherent jurisdiction, in which the child's welfare is the paramount consideration. Where a child has been taken from here to a country the Convention does not cover, an order made here does not bind the courts of that country, so the route is usually agreement, mediation or proceedings there.

Defences and the Evidence the Court Needs

The exceptions are narrow and the burden of establishing one falls on the person opposing the return. Under Article 13 the court is not bound to order a return where that person establishes that the applicant was not actually exercising rights of custody, or consented to or later acquiesced in the removal or retention, or that there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The court may also refuse where the child objects and has reached an age and degree of maturity at which it is appropriate to take account of their views.

Where harm is alleged, the assessment looks forward, at the circumstances as they would be if the child went back now. The HCCH guide to good practice on Article 13(1)(b) says past incidents of domestic or family violence may be probative, that they are not decisive on their own, and that the examination should include whether adequate and effective measures of protection are available in the country of habitual residence. In immediate danger call 999 or the National Domestic Abuse Helpline on 0808 2000 247; our domestic abuse and injunctions page covers protective orders here.

The documents that decide these cases are usually the ones created before anyone went to court:

• the child's passports, birth certificate and any order about the child
• where the child lived, went to school and saw a doctor before the trip, which goes to habitual residence
• messages, tickets and any signed consent letter, which show consent or its absence
• the dates the child left, was due back and was traced
• after a year abroad, evidence of the child's life since arrival

Delay causes problems of its own: it feeds both the settlement argument under Article 12 and an acquiescence argument under Article 13. Where it would help a court abroad, the High Court can declare under section 8 of the 1985 Act that a removal was wrongful.

How a Return Application Works

1. Tell the police, and ask about a port alert where a removal may be imminent.
2. Where the child is already in a Convention country, the application goes to the International Child Abduction and Contact Unit, which carries out the central authority's duties here. It passes the application to the central authority of the country the child is in, and the courts there decide it.
3. Where a child has been brought here, the application to the High Court is made in the Principal Registry of the Family Division on Form C67, headed in the matter of the Child Abduction and Custody Act 1985, with a supporting statement.
4. Where the application is heard here, the court can give interim directions before it is determined, and while proceedings continue the child cannot move home, or leave England and Wales, without the court's permission.
5. In proceedings here the file is marked with the date the six week period expires, and where the child objects and is old enough for their views to count, the court is likely to direct that a Cafcass officer sees the child.
6. A party who believes the court has erred can apply for permission to appeal.

Urgent Steps to Stop or Trace a Removal

The police can institute a port alert, also called an all ports warning, where they consider it appropriate and the danger of removal is real and imminent, meaning within 24 to 48 hours. No court order is needed first for a child under 16; for a child of 16 or 17 an order restricting removal has to be obtained. The child's name stays on the stop list for four weeks unless a further application is made.

The court can also be asked to prohibit removal, which our page on prohibited steps orders explains. Where such an order is in force, section 37 of the Family Law Act 1986 lets the court that made it require any person to surrender a United Kingdom passport issued to or naming the child. His Majesty's Passport Office acts only on an order that expressly requires surrender or prohibits further passport facilities, and then refuses a passport or further passport facilities until the child's sixteenth birthday. Serving a copy of that order on the Passport Office is the applicant's responsibility, the same day if possible.

Where a child's whereabouts are unknown in proceedings about arrangements for the child, section 33 of the same Act lets the court order anyone it believes may have relevant information to disclose it, and they cannot refuse because the answer may incriminate them. Where a child has not been given up as an order about arrangements for the child requires, section 34 lets the court that made that order authorise a court officer or a constable to take charge of the child.

When Legal Advice Is Especially Important

Advice matters most where:

• a flight is booked, the passports have gone, or a trip has been extended without your agreement
• you have been served with a return application and a hearing is days away
• your child has been abroad for close to a year, so settlement is likely to be argued
• harm is alleged and the protection available abroad has to be evidenced
• the country is not a party to the 1980 Convention
• proceedings about the same child run here and abroad, which our jurisdiction and forum disputes page covers

Our pages on cross-border child contact and international child relocation cover what follows a return.

How RakLAW Solicitors Can Help

We act for parents whose child has been taken or kept abroad and for parents responding to a return application here, from our office in Southwark, near Tower Bridge.

A parent applying from outside the United Kingdom through the central authority here gets public funding for that application whatever their means, and unless they already have a solicitor here the unit sends the application to a solicitor experienced in these cases. RakLAW does not hold a legal aid contract, so we act on a privately funded basis and say so at the outset. Court fees are on the GOV.UK court and tribunal fees page and our charges on the family law fees page. The first 15 minute consultation is free: call 0203 345 2000, book an appointment, or read about our international family law work.