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International Child Abduction
If someone has taken or is threatening to take your child away from their home country without permission, you must act quickly. If there is a dispute about whether a child should be moved to or kept in a particular country, swift and decisive steps are necessary to secure the best possible outcome. We can help.
Our specialist children team has the knowledge, resources and experience to take immediate legal and practical action on your behalf, whatever side of a dispute you find yourself on. This is a highly technical area of law where small errors can have far-reaching consequences. We are not fazed by this: we know what we are doing and how to maximise your chances of a successful outcome.
Two members of our dedicated children law team, partner Cara Nuttall and associate Jo-Anna Jellings, are Resolution Accredited Specialists in Child Abduction, in recognition of their technical expertise and experience in this area.
How JMW Can Help
We regularly represent parents and other individuals in a variety of situations:
- Threatened removal of children from the UK
- Left-behind parents of children who have been taken out of the UK or retained overseas after a holiday
- Parents who are accused of abduction or unlawful retention of children outside the UK
- Parents located overseas seeking the return of their children from the UK to another country
- Parents located overseas resisting the return of their children from the UK to another country
How the Law Works
Taking children across international borders can raise complex legal issues. These can include questions over which country’s courts should deal with any dispute and varying methods of assessing the welfare of any children involved.
A parent may well be considered to have abducted or unlawfully retained their child, even if they are a citizen or resident of the country to which they have taken them. This can include expats returning to England and Wales with their children against the wishes of a parent or other adult with parental rights that are recognised overseas.
The first question in any dispute is to assess which legal framework is relevant to your case. This will depend on which, if any, overseas country is involved at present.
Children Still in England and Wales
Stopping Abduction Before it Happens
If a child has not yet left the UK, a variety of steps can be taken under domestic law to halt a threatened removal. This can include obtaining a prohibited steps order from the court or orders relating to passports, emergency alerts to ports via the police, and communicating with HM Passport Office or relevant foreign embassies to prevent a passport being issued for the child.
A combination of ultra-rapid legal and practical action is needed to maximise the chances of preventing a child from leaving the UK. However, a well-resourced parent determined to leave the country can slip the net, particularly if they have the support of friends and family.
A person who removes a child from the UK without either the permission of those who hold parental responsibility or a court order allowing them to go may be committing a criminal offence. This includes short-term trips and holidays.
Parents and carers who want to go on holiday abroad but cannot get agreement from the relevant adults can apply to the court but need to do so in plenty of time. We deal with disputes like this very frequently and can help you resolve them.
Permanent Relocation Overseas (Leave to Remove)
Parents and carers who wish to relocate permanently overseas with a child need the permission of the court if any holders of parental responsibility object. This is a niche area of law in which meticulously detailed preparation is absolutely crucial, whether you are making or opposing the application. We have vast experience in this area and can provide you with early advice to give you the best possible chance of succeeding.
For more information on relocating with a child, please visit our dedicated page.
Children Who Have Left England and Wales
Hague Convention Countries
The United Kingdom is, along with many other countries, but by no means all, a member of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention provides a framework for the swift return of children habitually resident in one country who have been taken to another Hague Convention country. A child’s habitual residence is the country in which they normally live. There have been many court rulings on this issue and determining a child’s habitual residence can be complicated.
Theoretically, these frameworks should operate the same way in any Hague Convention country.
Broadly speaking, the decision about whether a child should be returned immediately will be taken by the courts of the Hague Convention country in which the child is physically present. If it is decided that the child should be returned home, long-term decisions about their upbringing should be taken by the courts in their country of habitual residence.
For example, imagine that a parent takes their child away from England, without permission, to the USA - a Hague Convention country. The US courts will deal with the application for the child to be urgently returned here under the Hague Convention. If it is decided that the child should be returned, the family court in England will make any long-term decisions about their upbringing if those with parental responsibility cannot reach agreement.
Non-Hague Convention Countries
If a child who is habitually resident in England and Wales has been taken to a non-Hague Convention country, the situation can be much more difficult to resolve. A number of countries with which UK residents have strong links, including India, Pakistan, mainland China and Nigeria, are either not in the Hague Convention at all or their membership is practically ineffective at present (e.g. Pakistan). This does not mean that the situation is hopeless or that nothing can be done but the process can be much longer and more unpredictable.
Proceedings to make the child a ‘ward of court’ need to be initiated in the UK High Court, as well as proceedings in the country to which the child has been taken. How these will be decided varies enormously from country to country.
Children Who Arrive in this Country
A parent or other person with parental responsibility who is left behind overseas may object to a child being brought to England and Wales or retained after a holiday here. This can result in an application for the child to be returned to their country of habitual residence in the domestic courts.
We represent parents and others making applications here for the child’s return to another country. We also advise parents and others who have brought children here and object to their return.
Defending an Application Under the Hague Convention
The majority of requests for children to be returned to their country of habitual residence are granted. However, there are circumstances in which return can be resisted. These so-called “defences” can be difficult to establish, making expert legal advice absolutely essential. In summary, a parent or carer may be able to defend an application to return a child if:
- The left-behind parent was not exercising their ‘custody rights’
- The left-behind parent agreed to the move or acquiesced in it
- A child of sufficient age and maturity objects to the return
- The child has been in the new country for more than 12 months and is “well-settled”
- There is a grave risk of physical or psychological harm if the child is returned
- There are genuine human rights concerns
Whether a defence is applicable in your case will depend very much on a detailed appraisal of the facts, which can be quite fast-moving.