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Child Abduction
Cases in England
Timetables for Hague Convention return
applications in England
Type of evidence in
English Hague proceedings
Are children heard in English Hague proceedings?
New English legislation concerning child abduction
Ensuring the safe return of children from England
where issues such as domestic violence and abuse are raised
New case law in England concerning international
child abduction
Jeremy D. Morley is an international family lawyer
 in
New York.
He is English (from Manchester), was educated in England, taught law at
university in England (Sheffield University) and handles many family law
cases that involve Brits in the U.S. and Yanks in the U.K. Jeremy has
helped many parents relocate with their children to the U.K. from
overseas locations. And he has helped many parents recover their
children who have been abducted to Britain or from Britain to other
countries.
Certain
sections of the English response to Hague Conference Questionnaire
concerning the practical operation of the Hague Convention of 25
October 1980 on the Civil Aspects of International Child Abduction
Timetables
for Hague Convention return applications
Whilst
there is no formal set timetable the listing officer ensures that
Hague applications are listed for hearing very quickly and the
established general rule is as follows:
• once the
initial
application is made, it is fixed for hearing 7 days later;
• if a defence is
raised the application is listed for
directions
within 21 days;
•
in order to
accommodate this, and given the
pressure on court
lists, the proceedings are listed “at risk” which means that there
is a possibility that on the day of hearing a Judge may not able to
accommodate the hearing due to the pressure of other hearings - if
this happens a further hearing is fixed for shortly thereafter.
Adjournments are
limited by rules of court [Family Proceedings Rules 1991 rule 6.10]
to a maximum of 21 days so that the court exercises control over the
progress of a case.
Article 11(3) of
the Brussels II revised regulation provides as between Member States
of the European Community, that a court to which an application for
return of a child is made under the Convention, the court shall act
expeditiously in proceedings on the application, using the most
expeditious procedures available in national law and without
prejudice to this, shall, except where exceptional circumstances
make this impossible, issue its judgment no later than six weeks
after the application is lodged.
Permission
to appeal is required. The permission application should be made to
the first instance Judge if possible and if not to the Court of
Appeal. If permission is refused by the first instance Judge, the
application can be renewed to the Court of Appeal.
Any Notice of
Appeal has to be filed within 14 days of the date of the first
instance decision. Convention cases are given priority. The Court of
Appeal office will try to refer the application for permission to
appeal either on the day of issue or within 24 hours to a Lord
Justice of Appeal (generally the Head of International Family Law).
The Lord Justice of Appeal will give listing directions including
deciding whether the application for permission to appeal and the
appeal should be heard together so that the permission stage and the
substantive appeal hearing take place on the same day.
Ordinarily an
appeal will be determined within 6 weeks of the grant of permission
to appeal.
The final
appellant stage is an appeal to the House of Lords. This rarely
occurs.
The Court of
Appeal has recently given guidance as to the administrative process
to be adopted by the court, in order to ensure that proceedings
governed by the Convention and the Brussels II revised regulation
are determined within the 6 week time limit imposed by Article 11(3)
of the regulation: Vigreux v Michel and Michel [2006] EWCA
Civ 630.
Type of Evidence
Directions for
the filing of evidence are given by the Judge hearing the case. The
parties may file affidavit evidence [Family Proceedings Rules 1991,
rule 6.7] but there is no right under the court rules to call oral
evidence. In Re F (A Minor) (Child Abduction) [1992] 1 FLR 548,
INCADAT HC/E/UKe 40 it was held that the admission of oral evidence
should be allowed sparingly, since there was a danger that if oral
evidence was generally admitted it would become impossible for cases
to be dealt with expeditiously and the purpose of the Convention
would be frustrated.
Oral evidence may
be required if there is a possibility of a non-return order but is
the exception rather than the rule. It is not ordinarily necessary
to hear oral evidence to consider an Article 13 defence as oral
evidence is not consistent with the summary nature of a procedure
which is neither designed nor intended to determine the detail of
factual issues between the parents. Where however the issue is
consent or acquiescence and the written evidence appears evenly
balanced oral evidence may be heard.
Are children
heard in Hague proceedings?
There is
no prescribed procedure. Children are generally heard, if
appropriate, through an interlocutor – normally the Children and
Family Court Advisory and Support Service [CAFCASS] established in
2001, the website address for which is www.cafcass.gov.uk. The
CAFCASS reporter meets with the child and reports back to the court
on the child’s wishes and feelings either orally or in writing
depending upon the time available.
The weight
given to the child’s views will depend upon the child’s age and
understanding and whether or not his/her views have been genuinely
arrived at. If the court finds that the child’s objections have been
influenced by the views of the defendant parent who may be
vehemently opposed to any return, little or no weight will be
attached to his/her expressed views.
Although
the child may be joined as a party to the proceedings at the
discretion of the court and be separately represented, it is only in
exceptional circumstances where the facts disclose that it would be
inappropriate for the child to be heard through a CAFCASS reporter
that the court will consider joining the child as a party and
ordering separate representation - Re J (Abduction: Child’s
Objection to Return) [2004] 2 FLR 64.
New legislation
concerning child abduction
The
revised Brussels II regulation [Council Regulation (EC) No
2201/2003) is directly effective and concerns jurisdiction and the
recognition and enforcement of judgments in matrimonial matters and
matters of parental responsibility within the Member States of the
European Community.
The law in
England and Wales with regard to rights of custody is primarily
governed by the Children Act 1989 which came into force in 1991 and
which created the concept of “parental responsibility” meaning all
the rights, duties and powers, responsibilities and authorities
which by law a parent of a child has in relation to the child and
his property.
The
Adoption and Children Act 2002 has amended the Children Act 1989 to
extend the class of persons who may have automatic parental
responsibility or who may acquire parental responsibility by formal
agreement or court order (the changes impact on step-parents,
prospective adoptive parents where a child has been placed under a
placement order and “special guardians” - the latter are a new
concept introduced by the 2002 Act).
The Civil
Partnership Act 2004 came into force on 5 December 2005 and amends
the Children Act 1989 and the Adoption and Children Act 2002 to
reflect the creation of the new status of civil partnership and to
allow civil partners to acquire parental responsibility in specified
circumstances.
The most
significant of the changes is with regard to unmarried fathers. The
Children Act 1989 provides that when a child’s parents are married
they both have parental responsibility but when the father is not
married to the mother, he does not have parental responsibility
simply by being the father. The unmarried father may acquire
parental responsibility and therefore custody rights by court order
or by formal agreement with the mother (a parental responsibility
agreement) and now, with effect from 31 December 2003, if both
parents jointly register the birth of their child.
Ensuring the safe return of children where issues such as domestic
violence and abuse are raised
An existing
finding by the courts of the requesting State that violence or abuse
has occurred would be a material factor.
The court may
indicate that a return order will not be made unlessundertakings are
in place to facilitate and
safeguard the
return of the child and returning parent and to ensure their welfare
pending the courts of the requesting State being seized with the
issues. Such undertakings are annexed to or recorded as recitals to
the return order.
Undertakings are
commonly used in order to ensure the safe return of the child and to
safeguard the child’s welfare pending the courts of the requesting
State being seized with the issues. They can be directed at issues
such as:
• a
prohibition on the requesting parent seeking to remove the child
from the care and control of the returning parent pending any
decision by the court of the requesting State;
• protection
for the returning parent/child against the use or threat of
violence or the use of harassment by the requesting parent;
• provision
for the child’s maintenance and accommodation pending any
decision by the court of the requesting State;
• provision
for the travel costs for the child’s return;
• no criminal
charges;
• exclusive
use of the family home by the defendant and child;
• agreement
that proceedings be issued either by the applicant or the
returning party in relation to the protection of the child /
returning parent, custody and all other issues pertaining to the
parties to be brought upon the immediate return of the returning
parent / child to the country of origin.
New Case Law in England
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 441.
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.
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United
Kingdom
Extracts from
International Child Abduction and Contact Unit's booklet: International
Child Abduction and Contact
What the law says about child abduction
In England, Wales, Scotland and Northern Ireland ,
child abduction involves both the civil and criminal law. However,
once a child has been removed from the United Kingdom, parental
abduction is usually treated as a civil matter.
Civil Law
The law in England and Wales is primarily
governed by the Children Act 1989 (the Children
Act), which came into force in 1991. This Act created the new
concept of parental responsibility, meaning the duties, rights
and authority which a parent has in respect of their child.
When a child's parents are married, they both
have parental responsibility. When the father is not married to
the mother, he does not have parental responsibility simply by
being the father, but he may acquire it either by court order or
by formal agreement with the mother (parental responsibility
agreement). Since 1 December 2003 if both
parents are present when the birth of the child is registered,
an unmarried father will automatically acquire parental
responsibility for his child.
The Children Act emphasises that parents have
continuing responsibility for their children and generally
should have continued involvement in the children's upbringing
even after separation. The Act provides a flexible system of
orders intended to settle particular matters. Each parent is
bound to obey any orders made under the Children Act. Orders
made under the Children Act are based on the principle that the
best interests of the child is the paramount consideration.
The orders available to the courts include
residence orders , which settle with whom the
child is to live, and contact orders , which
deal with any form of contact which the child is to have with
the other parent and significant people such as grandparents or
step-parents. Orders expressed in terms of custody and access
continue to have effect unless a court discharges and replaces
them with a residence or contact order or the child turns 18.
The law in Scotland is
governed by the Children (Scotland) Act 1995 ,
and is similar to the law in England and Wales.
The law in Northern Ireland
is primarily governed by the Children (Northern Ireland)
Order 1995 and is also very similar to that in England
and Wales.
Unless the court orders otherwise, a parent
with a residence order may take a child out of the United
Kingdom for a period of up to 28 days without a prior
application to the court or the consent of the other parent.
Failure or refusal to return the child to the
United Kingdom once this 28 day period has expired will
constitute a wrongful retention of the child for the purposes of
the Hague Convention and the Revised Brussels II Regulation.
In cases where abduction is feared and there
is evidence to support that fear, the court may make a
prohibited steps order to restrain either or both parents, from
taking the child abroad at all.
Criminal Law
Under the Child Abduction Act of 1984
, it is a criminal offence in England and Wales for any
person connected with a child, to take or send the child out of
the United Kingdom without the consent of any other person who
has parental responsibility for the child. A parent who has the
right to have contact with or access to a child will usually
also have parental responsibility.
No offence is committed, however, where a
child is the subject of a custody/residence order, if the court
which made the order has consented to the child being removed
from the country.
The same provisions apply in Scotland
and Northern Ireland . The relevant
Acts are the Child Abduction Act 1984 (Scotland)
and the Child Abduction (Northern Ireland) Act
1985 .
What the law says about the enforcement
of access/contact orders
Within the European Union
From 1 March 2005 some
British orders dealing with parental responsibility will be
enforceable throughout the European Union with the exception of
Denmark. The legislation which applies is Council Regulation
(EC) No 2201/2003 and is commonly referred to as Revised
Brussels II . It is also known as Brussels II
bis or Brussels II(a) . 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
(other than Denmark). If the order was made in proceedings
commenced prior to that date it may be enforceable under the
transitional provisions of the Regulation.
Orders made in Scotland and Northern Ireland are also covered by
the Regulation.
The Revised Brussels II Regulation has also
introduced a fairer and more streamlined process for dealing
with parental abductions within Europe. The new process is based
on the Hague Convention but narrows the grounds on which a
return can be refused and gives greater prominence to hearing
the child's views and the views of the applicant parent in these
proceedings. The Revised Brussels II Regulation also provides
for the State from which the child has been abducted to have the
final say on whether the child should be returned. If your child
is abducted within the European Union, other than Denmark, the
Revised Brussels II Regulation will apply to your case.
Outside the European Union but
within Europe
Although the Revised Brussels II Regulation
came into force on 1 March 2005 , t he European Convention
remains in force and continues to apply between the United
Kingdom and member countries outside the European Union (other
than Denmark). The Convention works on the principle of the
mutual recognition and enforcement of orders made in the
contracting states. Accordingly, there must be in existence an
order of a court or other authority with the necessary
jurisdiction in a European Convention country, which can be
recognized and enforced in the requesting state.
Outside Europe
There are no provisions for enforcing
access/contact orders between the United Kingdom and countries
outside Europe. Enforcement may be possible in some countries
under article 21 of the Hague Convention. It is not usually
possible to register British orders in overseas countries
including Commonwealth countries.
Child abduction cases
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.
Establishing contact with your
child in a non Hague Convention Country
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.
How access cases are handled
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.
Costs
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.
(1.) This includes the
Isle of Man but does not include the Channel Islands nor the
Overseas Dependent Territories.
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