International child abduction – an increasingly common situation
The rising number of international marriages and the continuing relative ease of international travel are fuelling a mini boom in international child abduction. Never, unfortunately, has there been more work for the experienced lawyer who specialises in the recovery of children abducted from the UK or from other countries into the UK. The human tragedy aspect of this bleak situation is harrowing in the extreme and the law can only attempt to return the affected children to where they belong.
Abducting a child –the law
It is a criminal offence in England and Wales, under the Child Abduction Act 1984 for a person connected with a child to take or send that child out of the UK without obtaining the consent of any other person who has parental responsibility for that child unless the child is subject of a custody or residence order and the court which made the order has consented to the removal of the child from the UK. In international law this situation constitutes the illegal removal of a child from their home; home being the child’s habitual residence and the illegality being the breach of custodial rights. Once the child has been removed from the UK, the process is governed by civil law.
Child abduction – the human cost
Such illegal removals can create what is known by specialist international child abduction solicitors as a ‘jurisdictional conflict of laws’ which often result in the curtailment or complete ending of a child’s association with one half of their family. As well as being devastating for the people from whom they have been illegally removed, this has many recognised emotional, psychological and social knock-on effects on the children themselves, such as:
• Loss of their former language.
• Loss of their former culture.
• Loss of their former nationality.
• Loss of their former name.
• Depression and an increased fear of abandonment.
• Loss of trust, security and stability.
• Anxiety and anger.
• Delayed and disrupted identity formation.
The Hague Abduction Convention
It became increasingly evident to nation states as the 20th century progressed that steps needed to be taken to draft a convention that could internationally remedy the wrongful removal or retention of children. Thus, in 1980 The Hague Convention on the Civil Aspects of International Child Abduction (also known as The Hague Abduction Convention) was drafted. It allowed for an application to be made for a child who had been wrongfully removed or retained to be returned to its habitual residence. The applicant had to possess rights of custody for the child and to have been exercising those rights at the time of the abduction. Providing the applicant met those requirements the convention stated that the child should be returned ‘forthwith’.
The Abduction Convention required the setting up of a single central authority in all the signatory states to handle communications with all the other authorities, agencies and domestic courts involved. In the UK, this authority is The International Child Abduction and Contact Unit (ICACU).
Parents or guardians most commonly make applications to the Central Authority in their country of residence or directly to the ICACU in the following circumstances:
• A child being kept overseas against a parent’s wishes.
• A parent concerned that a child might be taken overseas against the parent’s wishes.
• A child taken overseas without a parent’s consent.
• Contact with a child overseas being denied to a parent.
The ICACU will assess an application to ensure it meets the requirements of The Hague Abduction Convention. If it does so they will then refer the application to a specialist international child abduction solicitor. That solicitor will then take responsibility for:
• Applying for legal aid
• Contacting the applicant and taking their instructions
• Gathering the required evidence, sometimes with help from the ICACU
• Filing the necessary affidavits
• Instructing counsel
• Attending the hearing(s).
Emergency orders might have to be obtained to protect the child as soon as possible or prevent their removal from the jurisdiction or from a known address. In any event, such cases are listed for hearing with delay and dealt with by a High Court judge of the Family Division. The court will always ensure that delays are kept to a minimum and adjournments are never granted for more than 21 days.
88 countries have now signed up to a convention – with Japan being the latest, having signed up belatedly at the end of 2012.
Extenuating Circumstances, delay and non-compliance
Cases brought before the High Court under the Hague Abduction Convention are not usually straightforward as international law recognised that there might be circumstances in the which the abduction of a child might be necessary or justifiable; so called extenuating circumstances. This recognition was reflected in Article 13 of the Convention wherein a court’s mandatory obligation to return a child to their habitual residence could become a discretionary obligation in circumstances where the person or party opposing the return of the child could prove that the child, when returned, would be at grave risk of physical or psychological harm or that they would be in an ‘intolerable situation’.
The provisions of this article have been increasingly used by abductors to severely delay cases and often to retain custody of the child for their own benefit and against the ‘best interests of the child’, a phrase, which incidentally, does not appear in The Hague Abduction Convention. In the real world gender, national and cultural biases increasingly win the day in such cases, effectively and tragically rendering The Hague Abduction Convention toothless.
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