NOTES ON ENGLISH CHILD ABDUCTION
Note from Jeremy Morley: We handle many cases that involve English law, always collaborating as appropriate with independent solicitors and barristers in England and actually throughout the U.K., and feel that we are able to provide some pretty useful assistance.
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.
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.
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.
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.