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English Criminal Law in International Child Abduction Cases

Posted by Jeremy Morley | Dec 15, 2011 | 0 Comments

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Courts, prosecutors and the police are often reluctant to apply criminal law in international child abduction cases. They feel that such cases are mere family disputes that should be resolved privately or through the civil courts.

In many cases this view is naïve and it can be extremely harmful.

Now the English Court of Appeal has demanded stronger enforcement of criminal laws against international child abduction, full punishment for the commission of such offenses and new legislation to allow for longer jail terms.

On the appeal of two cases in which fathers had abducted their children and taken them overseas, where they had retained them for several years, the English Lord Chief Justice, Lord Judge, described child abduction as “an offence of unspeakable cruelty.” R v Kayani and Solliman [2011] EWCA Crim 2871. He insisted that a plea for mitigation based on a “right to family life” was “misconceived”, both at common law and under Article 8 of the European convention on human rights. He said that “We can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered,” 

The fathers had been sentenced under the Child Abduction Act 1984, which provides for a maximum seven-year sentence. 

Not only were the jail sentences upheld but the Court of Appeal suggested that child abduction should be treated as kidnapping and that the maximum sentence should be increased beyond seven years, to as long as a sentence for life. Previously courts had refused to treat parental child abduction as subject to equal punishment as kidnapping. The Court of Appeal overturned prior precedents. Lord Judge insisted that a discrepancy in sentences between child abduction and kidnapping was “illogical”. He stated that “Our view is clear. Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate. To that extent the observation of the court in R v C has been overtaken by events and has no continuing authority.”

About the Author

Jeremy Morley

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from its New York office, with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice,...

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