Inchoate rights of custody:

Re B (A Minor) (Abduction) [1994] 2 FLR 249 where the court held that the rights within Art 3 may extend to “inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child.”

A person with whom a child is placed on a long-term placement with the authority to make decisions may acquire custody rights, as will an unmarried father with no parental responsibility if he lives in the same household and exercises parental rights for a period of time - Re G (Abduction: Rights of Custody) [2002] 2 FLR 703, or where his rights have been confirmed - Re E (Abduction: Rights of Custody [2005] 2 FLR 759.

A court may have a right of custody at the relevant time in the sense that it has a right to determine the child’s place of residence, provided that it has acquired “custody rights” - Re E (Abduction: Rights of Custody) [2005] 2 FLR 759. It acquires rights of custody when its jurisdiction is invoked in respect of matters within the meaning of the Convention. The date on which its jurisdiction is invoked is at the latest when proceedings are served, or in special cases before then - Re H (Abduction: Rights of Custody) [2000] 1 FLR 374 HL.

General Rights of Custody: 

A provision in an order that a child is not to be removed from the jurisdiction of a State without the prior approval of the court or the written agreement of the parties confers “rights of custody” for Convention purposes on the non-custodial parent (Re P (Abduction: Consent) [2004] 2 FLR 1057).  

Where an issue is raised regarding whether the foreign law gives the applicant custody rights or not, the court will determine the issue on expert evidence adduced before it (see Re JB (Child Abduction) (Rights of Custody: Spain) [2004] 1 FLR 796). Where the court is faced with conflicting expert evidence, it is for the applicant to prove his rights under the relevant foreign law.

Habitual residence: 

There are two features which must be proved to establish “habitual residence” namely that the person was present in a place or country (i) voluntarily, and (ii) for settled purposes, and, with a settled intention - Al Habtoor v Fotheringham [2001] 1 FLR 951; Re D (Abduction: Habitual Residence [2005] 2 FLR 403 and Re M (Abduction: Habitual Residence: Relocation [2005] Fam Law

Rights of access: The actual exercise of rights of custody

H v M [2005] EWCA Civ 976: In determining whether or not rights of custody were being exercised by the applicant immediately prior to the child’s removal, the court was required to apply the autonomous law of the Convention and not English law. The autonomous meaning was to be determined in accordance with English law as the law of the court whose jurisdiction had been invoked under the Convention. However the Convention could not be construed differently in different jurisdictions: it had to have the same meaning and effect under the laws of all contracting States. In any case which involved the construction of an Article of the Convention the answer was to be found in the international jurisprudence of the contracting States.

Consent or acquiescence: 

Re P (Abduction: Consent) [2004] 2 FLR 1057: where consent is in issue, the burden of proof shifts to the person who is opposed to the return of the child to prove, on the balance of probabilities, that the removal was by consent. 

Grave risk of harm:

Re S (Abduction: Custody Rights) [2002] 2 FLR 815: the court considered the risk of harm posed by reason of terrorist attacks and held that the issue was whether there was a risk of specific harm to the particular child and not whether there was a general risk of harm. 

Exposure to physical or psychological harm: 

Article 13(b) names three risks, interlinked by the use of the word “otherwise”. The proper course for the court when considering an Article 13(1)(b) defence is to consider the grave risk of harm as a discrete question and then consider the Article in the round, asking if the risk of harm was established to the extent that led one to say that the child would be placed in an intolerable situation if returned: Re S (A Child) [2002] EWCA Civ 908. 

Re H (Children)(Abduction: Grave Risk) [2003] EWCA 355: the threshold that had to be crossed when an Article 13(b) defence was raised was a high one and difficult to surmount. Even if the threshold was crossed the court retained a discretion as to whether to return the child.  

TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515: where fear of violence from the applicant is alleged as a basis to establish grave risk of psychological harm to the children, the court will take into account measures which the alleging party could reasonably be expected to take in the requesting country to protect herself and her children against the applicant.  

Re B (Abduction: Grave Risk) [2005] EWHC 2988 (Fam): where it is alleged that the applicant has breached conditions attached to an order made by a court in the requesting state, the proper course should be to return the children for that court to consider the issues raised on a renewed application.  

Child’s objection to return:

Zaffino v Zaffino [2005] EWCA Civ 1012. In the exercise of the discretion arising under Article 13 the court must balance the nature and strength of the child’s objections against both the Convention considerations (including comity and respect for the judicial processes in the requesting State) and also general welfare considerations.

The Hague Convention:

The United Kingdom is party to an international convention under which legal procedures are agreed with a number of other countries to assist in the return of a child who has been abducted. The convention is the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

The Hague Convention works on the principle of returning children aged under 16 years who are wrongfully removed or retained away from their country of habitual residence. In order to be considered wrongful, a removal or retention must be in breach of rights of custody which are actually being exercised by a person, an institution or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention.

Under the Hague Convention courts are required to order the return of a child wrongfully removed or retained away from their country of habitual residence, there are however a number of grounds on which a return order can be refused. These grounds include: the court being satisfied that to return the child would expose him/her to a grave risk of physical or psychological harm , or otherwise place her/him in an intolerable situation; the child objects to being returned and is mature enough to have his/her views taken into account. The court may also refuse to return a child if the applicant was not actually exercising rights of custody at the time of removal or consented to or subsequently acquiesced in the removal or retention.

The Revised Brussels II Regulation:

This is Council Regulation (EC) No 2201/2003 of the European Parliament which has effect from 1 March 2005 (the Revised Brussels II Regulation). The Regulation will be applied to cases of parental child abduction within the European Union and to the enforcement of orders for contact or access within the European Union.

The Regulation applies the Hague Convention but modifies its application in several important ways. The Regulations gives greater emphasis than the Hague Convention to hearing the views of children provided this is appropriate for their age and maturity. The Regulation will also require that the left behind parent be given an opportunity to be heard before a decision not to return a child is made and the Regulation narrows the grounds on which an order refusing to return a child can be made. The most far reaching change which the Regulation makes is that it provides an opportunity for the left behind parent to litigate the issue of residence/custody in his/her own country if a return order is not made. If the left behind parent in this situation seeks and obtains an order that requires the return of the child, that order must be enforced in the country in which the child is located notwithstanding the earlier non return order.

The Revised Brussels II Regulation does not apply to Denmark.

The European Convention:

From 1 March 2005 this Convention will only operate with countries which are not members of the European Union. Applications from European Union countries will be dealt with under the Revised Brussels II Regulation.

The European Convention is rarely used in abduction cases because the Convention only operates where an order already exists. The Convention has more frequent application to the enforcement of access orders.

Orders made in European Convention countries are recognised, but must be registered before being enforced. Enforcement may not necessarily follow immediately after registration. There are a number of grounds on which enforcement can be opposed. These are set out in articles 9 and 10 of the European Convention.

How abduction applications are handled:

The Hague Convention, the European Convention and the Revised Brussels II Regulation are all based on a system of Central Authorities. Each member country appoints a Central Authority which functions as the contact point for all applications under the Conventions or the Revised Brussels II Regulation. The Central Authority for England and Wales is located in the Office of the Official Solicitor and Public Trustee and is called the International Child Abduction and Contact Unit (ICACU).

The Hague Convention: Abduction cases are divided into incoming and outgoing. Incoming cases are those in which a child is abducted from a Convention Country into the United Kingdom and outgoing cases are those in which a child is abducted from the United Kingdom to another Convention Country.

Incoming cases

A parent whose child has been abducted to or retained in England and Wales may make an application for the return of the child to the Central Authority of the country in which they are living. That Central Authority will forward the application to the Central Authority for England and Wales. If they prefer a parent may apply directly to the Central Authority for England and Wales which is known as the International Child Abduction and Contact Unit (ICACU). The ICACU will assess the application and if it meets the requirements they will refer it to an experienced solicitor drawn from a firm familiar with these cases. The solicitor appointed is then responsible for:

•  making an application for legal aid,

•  taking the applicant's instructions,

•  assembling the evidence, if necessary with help from the ICACU

•  filing affidavits of fact and about foreign law and

•  instructing counsel and attending the hearing.

The solicitor will often obtain orders to protect the child immediately after the proceedings start. These orders could include orders:

•  requiring the surrender of passports, or

•  prohibiting the removal of the child from the jurisdiction or a specific address.

If the whereabouts of the child is not known, the solicitor may make an application for a "seek and find order," or orders requiring the disclosure of information.

All incoming cases are dealt with in London by a High Court judge of the Family Division, and the High Court official responsible for listing cases, known as the Clerk of the Rules. This ensures that these cases are listed for hearing very quickly. Adjournments are limited to a maximum of 21 days, so that the court exercises control over the progress of the case.

Applicants are not normally required to personally attend the hearing. Non means tested (free) legal aid is available to applicants seeking the return of a child under the Hague Convention.

All applications made after 1 March 2005 which involve abductions from countries within the European Union (other than Denmark) will be handled under the Revised Brussels II Regulation which is discussed below.

Outgoing cases

Outgoing abduction cases are those where children are abducted or retained away from England and Wales in a country which is a party to the Hague Convention. Cases within the European Union are handled under the Revised Brussels II Regulation which is explained in the next section. In outgoing cases the ICACU discusses the circumstances with the applicant or their solicitor and may ask them to fill in an application (questionnaire) for the return of the child. The ICACU may also ask the parent to make a written statement, and provide copies of any court orders. It is useful to provide a recent photo of the child. An application is then prepared on the basis of the material provided. That application and supporting documents is sent off, with translations if necessary, to the Central Authority of the country to which the child has been abducted or retained. Thereafter, the ICACU will monitor the progress of the case, liase with the Central Authority of the requested state and the applicant, give advice about English law and do all that it can to help to bring the case to a successful conclusion. There is no charge for the services of the ICACU.

It is important to understand that the speed and manner in which a case is conducted in the overseas country are entirely dependent upon the internal procedures of that country. Every country has exclusive jurisdiction within its own territory. The ICACU provides a point of contact between the applicant or solicitor and the Central Authority of each country but it cannot force another country to decide cases or enforce laws in a certain way. It will, however do all it can to press for a swift resolution of the matter and will keep you or your solicitor informed of progress.

The Revised Brussels II Regulation:

This Regulation applies where a child has been abducted to or from a European Union country. In general terms these applications are processed in the same way as applications under the Hague Convention.

There are 4 major differences in applications which come under the Revised Brussels II Regulation. They are:

•  The court is required in every case to hear the views of the child unless this appears inappropriate having regard to the age or degree of maturity of the child. There is no process prescribed for hearing the child. It is anticipated that in England and Wales this will be done through an expert such as a CAFCASS officer.

•  The court is required to hear the views of the applicant parent if it is considering not returning the child. Again no process is prescribed for how this is to be done.

•  The court may not refuse to order a return even if a defence of grave risk to the child has been made out under article 13(b) of the Hague Convention provided that it is established that adequate arrangements have been made to ensure the protection of the child after his or her return.

•  Where an order refusing a return has been made, the applicant parent (or the abducting parent) may within 3 months of the non return order, request that the court of the country from which the child was abducted hear and determine the issue of custody/residence of the child. If after such a hearing the court in the country from which the child was abducted determines that the child should return to that country then the court of the country to which the child has been abducted must enforce that order notwithstanding its previous order not to return the child. If no application is made within the 3 month period, the country to which the child has been abducted will have jurisdiction to make decisions about the child including custody/residence and access/contact.

The European Convention:

Applications under the European Convention are dealt with by the ICACU in the same manner as return applications under the Hague Convention. The ICACU form does not ask the applicant to specify which convention he or she wishes to invoke, and the ICACU will often suggest the use of one or the other.

Where an order exists, the applicant may find it to their advantage to use the European Convention in access cases because the existing order may be enforced. In addition, applicants are entitled to free legal aid without being subject to a means tests.

Applications under the Convention between countries which are also members of the European Union (other than Denmark) will be handled under the Revised Brussels II Regulation from 1 March 2005.

Abduction within the United Kingdom:

Scotland and Northern Ireland have different legal systems from England and Wales, and the law in Scotland and Northern Ireland differs in some respects. In the past these legal differences caused conflicts of jurisdiction where proceedings could be brought in respect of the same child in different parts of the United Kingdom at the same time. Orders made in one court were not necessarily recognised or enforceable in other courts which made it possible for parents to ignore an order obtained in one part of the United Kingdom, remove the child to another part and institute fresh proceedings there in the hope of obtaining a different result.

Part I of the Family Law Act of 1986 was passed to deal with these problems. The Act aims to prevent competing proceedings being commenced in two different parts of the United Kingdom at the same time. It also allows orders made in one part of the United Kingdom to be recognised and enforceable in all parts (1).

The party wishing to have an order enforced in another part of the United Kingdom should apply to the court which made the order. That court will then forward the papers to the appropriate court in the other part of the United Kingdom, which will then register it.

A court in one part of the country may order that a child may not be removed from the United Kingdom or part of it which the court may specify. If the child is removed in contravention of an order, the child has to be returned from where he or she was taken and only the court which made the original order may give consent to the child being removed from the United Kingdom.

A court may also order passports to be surrendered, the disclosure of the child's whereabouts or particulars of other proceedings concerning him or her and may give special authority to an officer of the court or constable to ensure the recovery of the child.

The Crown Dependencies and the Dependent Territories:

The United Kingdom is responsible for 3 Crown Dependencies and 14 Overseas Dependent Territories.

The Crown Dependencies are the Isle of Man and the islands of Guernsey and Jersey know collectively as the Channel Islands. The Overseas Dependent Territories are Anguilla; Bermuda; the British Antarctic Territory; the British Virgin Islands; the Cayman Islands; Gibraltar; Monserrat; Pitcairn Island, St Helena and dependencies (Asuncion and Tristan Da Cahuna) South Georgia and the South Sandwich Islands; the Turks and Caicos Islands.

Orders made in the Isle of Man are recognised and enforceable throughout the United Kingdom and vice versa but orders made in the Channel Islands and the Dependant Territories are not. However, such orders are likely to be given considerable weight in the respective courts.

The Hague Convention has been extended to the Isle of Man, the Cayman Islands, the Falkland Islands, Monserat and Bermuda. Local specialist legal advice should be taken in the event of an abduction between the Channel Islands or the Dependant Territories and other parts of the United Kingdom.

Having Contact/Access with your Children overseas:

Contact with your child within the European Union

From 1 March 2005 some British orders dealing with parental responsibility including contact with children, will be enforceable throughout the European Union with the exception of Denmark. The legislation which applies is Council Regulation (EC) No2201/2003 and is commonly referred to as Revised Brussels II . If the order you are seeking to enforce was made in proceedings commenced after 1 March 2005 it will be directly enforceable throughout the European Union (except Denmark). If the order was made in proceedings commenced prior to that date it may be enforceable under the transitional provisions of the Revised Brussels II Regulation. These are set out in article 64 of the Regulation. Orders made in Scotland and Northern Ireland are also covered by the Revised Brussels II Regulation. Orders made in the Crown Dependencies and the Overseas Dependant Territories are not covered by the Revised Brussels II Regulation.

You have existing contact orders

•  If the orders were made in proceedings commenced after 1 March 2005 you will be able to enforce those orders in the European Union country other than Denmark, in which your child is living, under the Revised Brussels II Regulation. You will need to obtain a certificate in accordance with annexure III of the Regulation from the court which issued the orders. You should contact your solicitor or the ICACU.

•  If the orders were made in proceedings commenced prior to 1 March 2005 the orders may still be enforceable under the transitional provisions of the Revised Brussels II Regulation. You should contact your solicitor or the ICACU to discuss the circumstances.

•  If the orders are not enforceable under the Revised Brussels II Regulation, you may be able to register the orders in the country in which your child is living under the European Convention.

You do not have existing contact orders

You may be able to make an application under article 21 of the Hague Convention if your child is located in a Hague Convention country. If not you will need to establish contact orders in the country in which your child is living.

Establishing contact with your child in a Hague Convention Country

The assistance which can be offered to applicants seeking to establish or enforce rights of access under the Hague Convention is limited. The reason for this is to be found in the case of Re G (a Minor) (Hague Convention: Access) [1993] 1 FLR 669 (Court of Appeal: 9th December, 1992). In that case the Court of Appeal held that Article 21 of the Hague Convention (which is incorporated into English law by Schedule 1 of the Child Abduction and Custody Act 1985) gives no power to a court to determine issues or make orders, and that, therefore, those wishing to apply for access must apply for a "contact order" under the usual domestic law provisions contained in section 8 of Children Act 1989.

A circular dated 5 March, 1993 (reported at [1993] 1 FLR 804) explains that the duty of the ICACU in access cases under the Hague Convention is limited to finding solicitors who are willing to act for the applicant and assisting them to apply for legal aid.

Once solicitors have accepted an applicant's instructions, the case will be conducted as if it were an ordinary application for contact under the Children Act. This means that no special priority is accorded to these cases and no special provisions are made for the fact that the applicant is overseas.

Although it is possible to make an application for contact under the Hague Convention to any level of court competent to deal with family proceedings, it is generally accepted that, because of their substantial foreign element, contact applications arising from Article 21 should be heard and determined in the High Court.

 

If your child lives in a country outside the European Union and that country is not a party to the Hague Convention you will need to commence legal proceedings in the country in which your child is living. If you have existing British orders they will not be enforceable in the country in which your child is living but such orders may be of evidentiary value in the foreign proceedings.

 

Cases which come under either the Hague Convention, the Revised Brussels II Regulation or the European Convention will be handled by the ICACU. If the ICACU is unable to secure voluntary compliance with the orders the application will be forwarded to solicitors with experience in these matters. The solicitors will then take instructions, secure legal aid if you qualify and commence any necessary proceedings.

If your case does not come under the Conventions or the Regulation you will need to secure the services of a solicitor in the country in which your child is living.

 

Except in a very few countries such as Australia and New Zealand, legal assistance is not available for access cases under the Hague Convention. Under the Revised Brussels II Regulation you will be eligible for legal assistance in the European Country in which your child is living if you have qualified for legal assistance in the United Kingdom and vice versa. No payment for legal costs is required for applications made under the European Convention. Legal assistance is not available in other countries unless you qualify under the domestic rules for the provision of legal aid in the country to which you are applying.

Criminal Law:

You should report any abduction to your local police station.

Civil Law:

If you fear that your child might be abducted, then you and your solicitor should consider making an application to the court for either, a Prohibited Steps order, Residence order and or a Parental Responsibility order under the Children Act 1989 . It may also be prudent to obtain an injunction preventing the other parent from removing the child, or seeking that the child be made a ward of the High Court. Wardship imposes an automatic prohibition on taking the child out of the United Kingdom. Orders can, if necessary, be made without notice to the other side (ex parte).

In addition, where there is a contact/access order in force, and it is feared that the child may be abducted by the person exercising contact, an application may be made for a variation of the order to provide for the contact to be supervised.

A wide range of orders may be made under the High Court's inherent jurisdiction with respect to children or within wardship proceedings, including "Seek and Find" orders, orders restraining persons from leaving the jurisdiction and requiring the surrender of passports.

In the Family Law Act 1986 there are powers to order disclosure of a child's whereabouts, to order the recovery of a child, to restrict the removal of a child from the United Kingdom and to require the surrender of any passport containing details of a child.

If it is feared that a child might not be returned from a visit abroad, then it is possible to ask the court to allow the visit only on condition that the person taking the child abroad lodge a sum of money in court, (a bond - or a charge on property) which will be forfeit if the child is not returned.