If you have taken your child out of the UK without the consent of your ex, there is a possibility you have acted illegally under the Child Abduction Act 1984 and could be charged with abduction. This article provides information on unlawful removal of a child and has been designed to give you an overview of the basic legal principals applying to this area of law.
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What is child abduction?
Child abduction happens when a person removes or sends a child under 16 out of the UK without the consent of all those who hold parental responsibility or without obtaining permission from the court. This is a serious issue, with both criminal and civil consequences, and, if not dealt with swiftly, incur a severe custodial sentence.
The severity of the consequences can be reduced by taking swift and decisive action to resolve the situation. Whatever your reason for taking your child abroad, the quicker you act, the less likely the situation will result in serious orders being made against you.
Three categories of child abduction
There are three main categories of child abduction:
Abduction
Where a child is taken abroad without the other parent’s permission. Out of the three categories, this is the only one that may be considered a criminal offence under UK law.
Wrongful retention
This is where a child has been kept in a foreign country without obtaining the appropriate consent following a trip abroad.
Threat of abduction
Where a child is at risk of being taken out of the UK without obtaining the appropriate consent.
Law surrounding child abduction
Under the Child Abduction Act 1984, it is a criminal offence for an individual connected with a child under the age of 16 to send or take that child out of the UK without first obtaining the appropriate consent.
Appropriate consent is required from the:
- Child’s mother
- Child’s father if he has parental responsibility
- Child’s guardian
- Child’s special guardian
- Holder of a residence order for the child (in place prior to 22nd April 2014)
- Holder of residence under a Child Arrangements Order in respect of the child
- Local Authority, if the child is in care
- Court, if the child is a ward of court or detained
28-day rule
If there is a residence order in place prior to 22nd April 2014 or a parent is the holder of residence under a Child Arrangements Order, then they may take the child out of the UK for a period of up to 28 days without the consent of anyone with parental responsibility. Unless there is an order in place expressly forbidding it.
If a parent intends to take the child out of the UK for more than 28 days, they will need to either obtain the written permission of the other party with parental responsibility or obtain a court order if the other parent refuses to consent.
Remaining in the UK
You will not have committed the criminal offence of abduction if you take a child from England to Scotland, Wales, or Northern Ireland, but you may still have committed a civil offence. It is potentially a criminal offence to take a child to the Channel Islands or the Isle of Man without first obtaining the proper consent.
If there are any orders in place regarding the child, they will be recognised and enforced by all courts over the UK, provided the order has been registered in the court of that jurisdiction. This is done by sending a certified copy of the order to the court, who then registers it.
An application can be made to the High Court for the return of the child under the “inherent jurisdiction”. This is also the process for obtaining the return of the child, if it has been taken to a country which is not part of the Hague Convention.
The Hague Convention
If the country you have taken your child from and the country they are now in are both signed up to the Hague Convention on the Civil Aspects of Child Abduction, the other parent may use its process to ask for the child to be returned. The court of the country that your child is currently residing in will decide.
The UK became a signatory to the 1980 Hague Convention in 1984.
What if I have been accused of abducting my child?
If you have received court documents suggesting you have abducted your child, do not simply ignore them. You should contact a solicitor immediately to discuss the issues and plan a way forward.
If you believe you have been wrongfully accused, you should write to the court explaining this and make sure you attend any hearings that have been scheduled. You can prepare a position statement which summarises your views before the hearing, a copy of which should be sent to the court and the other side.
If you are abroad with your child because of domestic abuse and you have received documents from the country you left telling you to return, you should contact a solicitor in the country you escaped from immediately. You can also apply to the High Court in England stating that you should not have to return to the country where your ex is living. The arguments and law surrounding whether you should be forced to return to the country with the children are complex, which is why you should speak with a solicitor as soon as you can.
Penalties for child abduction
Child abduction is a very serious offence and as such can incur a maximum custodial sentence of seven years. It is important to understand that anything the abductor does to the child, such as FGM or forced marriage, can add to the sentence handed down.
Child abduction is an “either-way” offence, meaning the case can be heard at either a Magistrate’s Court or the Crown Court. Magistrates Courts are generally for less severe offences with the Crown Court handling more severe cases. The type and severity of the abduction with determine which court the case will be allocated to.
Potential defences to child abduction
There are six potential defences available:
- The parent who has been left behind was not exercising their rights
- The child is now settled in the new country
- The parent who has been left behind consented to the removal or retention of the child
- The left-behind parent has reluctantly agreed to the child’s removal or retention
- There is a serious risk of psychological or physical harm to you or your children
- Your child has objected to a return to their former country.
Child abduction cases require thorough analysis and careful consideration. You could very well have a defence, and there are many cases that can be resolved by agreement and without going to court. If you find yourself in this situation, you should seek immediate legal advice.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
