Hartnell Chanot: Divorce/Family Law Solicitors Exeter, Devon

Could you be abducting your child

Jane Chanot, Child Law Specialist at Hartnell Chanot & Partners has over 15 years experience working in the field of family law and has particular expertise in all aspects of Children law including international child abduction and representing children. Call 01392 421777 for further information or free initial advice.

Could you be abducting your child by moving abroad?

'Child abduction', may sound dramatic, but due to the increase in family breakdown and ease of travel, separated or divorced parents who take their children abroad may not realise that they have officially abducted their child. Many divorced or separated parents fail to realise that they need the permission of the other parent, or the court, to move abroad, and without it they are not only contravening the other parents rights but may find themselves the subject of criminal proceedings.

While high-profile cases such as that of Molly Campbell - the 12-year-old girl whose mother claimed her Pakistani father abducted her - are relatively rare, the numbers of child abduction cases are rising as relationships between partners of different nationalities become more frequent. Many cases involve the ‘custodial' parent, who believes that because they have custody for their child, they can do as they wish, ignoring the fact that the other parent has custody or access rights as international law terms them.

The media thrives on stories of parents who have taken their children abroad for a holiday and then not returned them - but they do little to show that it is the parent who has lost the child that has to struggle to use the civil courts to get the child back. This is a huge and difficult task, despite the fact that Britain has signed up to the Hague Convention on International Child Abduction and is a signatory to Brussels II Revised (this specifically governs such matters between Member States of the European Community), which both require that courts in the country to which a young person is taken must, with few exceptions, return the child.

Moving Abroad

So what happens if you what to move abroad with your children?

Where one parent, who is the primary carer, wishes to permanently remove the children, written consent is required from the other parent. If consent is refused the move abroad cannot take place unless permission is obtained from the court. A parent, who removes the child from the country without obtaining such permission, has ‘wrongfully removed' the child, even if the child normally lives with them.

Most applications to remove children from the country are made by mums - and with the prospect of little contact, it is not surprising that fathers do not give their permission easily. The courts give very serious consideration to granting permission to such applications, carefully taking into account the best wishes of the child and the impact on the parent left behind. They will decide if the move abroad is an attempt to exclude the father from the child's life, or if it is motivated by a genuine desire to improve the life of the parent with care and the child. If the plan is realistic, and the parent has considered the additional cost of contact, has good job prospects or family abroad, and has accommodation or schooling in place, the court will then look at the father and his reasons for opposing the move.

Above all, the court will consider the welfare of the child and whether it is in their best interests to move abroad permanently. They must consider what impact it will have on the parent and child if the application is refused, and how to ensure that contact with the non-resident parent continues, although such contact will necessarily be more difficult and less frequent. If there are concerns that contact may not take place the Court may add conditions to the permission being given such as the requirement for a surety or bond payment which, should the parent with care of the child, not cooperate with contact then the fund would support the other parent in terms of travel costs and even litigation costs which may arise in seeking to restore contact.

Generally speaking a well-founded and well-prepared application has a good chance of success. If the move has been meticulously planned and would improve the quality of life for the child, the Court would be unlikely to stand in the way of an application. But this is a very complex area of law, and there is increasing concern that the relationship children have with the other parent suffers and legal advice should be sought immediately. Hartnell Chanot & Partners have number of specialist family lawyers dedicated to children law who can help by calling 01392 421777.

What about the rights of an Unmarried Father?

An unmarried father has more limited legal rights. It is in the father's interest to have parental responsibility. This can be acquired by agreement, Court order, obtaining a residence order or is automatically acquired if you were present with the mother at the registration of the child's birth and you were accordingly registered as the father of the child on or after 1st December 2003. A Parental Responsibility form can be obtained from our website www.hartnellchanot.co.uk

What is parental child abduction?

Occasionally, a parent will decide to take the law into their own hands and bring their children to live with them without the permission of the other parent or the courts - an act called parental child abduction. This includes the removal or retention of a child across an international border by one parent (or person who has parental responsibility), which is either in contravention of a court order or without the consent of the other parent. Statistics suggest that child abduction has increased by 87% since 1995 with an increase in abductions by British women who marry a foreign national and bring their children home to the UK when the marriage goes wrong.

Can you prevent your child from being abducted?

If you have any reason to suspect that your child might be abducted, Reunite is the leading UK charity specialising in international parental child abduction. It provides advice, information and support to parents, family members and guardians who have had a child abducted or who fear child abduction. They also provide advice to parents who may have abducted their child as well as advising on international contact issues. The charity has this advice for parents who suspect their former partner will attempt to abduct their child.

Do not delay, seek immediate advice from a family lawyer. You may need to get a court order - like a residence order under the Children Act 1989, which determines which parent will primarily look after a child and should also to stop your child being taken out of the country without your prior permission.

Write to the UK Passport Service and ask them not to grant your child a passport without your permission (this is only possible where you have got an order from the court in certain circumstances). But the Passport Office has no power to ask for a passport to be surrendered if it has already been issued.

Contact the police. If they are convinced there is a real threat they can issue a 'port alert' to alert possible points of departure in the UK. How effective a port alert will be depends a lot on how much information you can supply them with - make sure that you have available a recent photo of your child and the other parent which can be circulated and if you have details of which port - airport or sea port for example - your child is likely to travel through, that will help the police focus their efforts.

Get a child abduction prevention pack, available to download from the Reunite website  http://www.reunite.org or from www.hartnellchanot.co.uk

What if your child has already been taken abroad, what can you do?

Child abduction is a very traumatic experience. There are legal procedures in place to ensure that the children are returned to their country of residence, but how long it will take will depend on the country concerned, the circumstances of the case and indeed whether the child can be traced. It is important to establish as soon as possible what your parental rights are under the local law of the Country to which your child has been taken. You should obtain urgent legal advice about the laws and practice for the country concerned and the position regarding legal aid for legal costs.

What are the Hague Convention and Brussels II revised?

The United Kingdom are signatories to the Hague Convention on International Child Abduction that came into force under domestic legislation through the Child Abduction and Custody Act 1985. Brussels II Revised Regulation came into effect at the end of 2003 and addresses cases arising under the Hague Convention where member States of the European Community are involved.

Under the Convention, if your child is "abducted" by the non-resident parent into one of 64 countries who have signed the Convention, these countries have an acknowledged framework within which to operate in order to assist in the safe return of the child to its custodial parent. The Hague Convention requires that the child in question has been wrongfully removed or retained by the parent who has "custody" of that child, or rights that are equivalent to custody. The Convention dictates that the child should be returned to the place of his or her habitual residence in order that the Court in that jurisdiction may decide what is in that child's best interests. Unless there is a grave risk of physical or psychological harm, or some other compelling reason, for example that the child has been away from the place from which they were "abducted" for more than one year (all of which if even proved still leaves the Court with discretion to return the child), then the child will normally be returned to their homeland.

Prevention is always better than cure.

If you have a reasonable fear that abduction of your child may take place, you must take preventative steps and contact a family law solicitor immediately on 01392 421777.

Read more about Preventing Child Abduction here