MSB Solicitors are the market leaders in Merseyside and the surrounding area in International Family Law, we are the only firm in Merseyside and the surrounding area that is on the International Child Abduction And Contact Units referral list which is a recognition of our specialism within this complex field of law.
As the world we live in becomes smaller, and statistically families become increasingly less likely to stay together, more and more people will find themselves caught up in International family disputes.
The term Child Abduction conjures up images of ‘stranger danger’ but it in fact relates to the removal of a child from one country to another without the consent of every person with Parental Responsibility or the permission of the Court.
There are exceptions:
If the consent is unreasonably refused (unless a Child Arrangement Order is in place and the child lives with the person unreasonably refusing
If all reasonable steps have been taken to obtain the consent of the other party but there has been no response .
The person believes he or she has consent or would have consent if the other person was aware of the circumstances.
The person has a Child Arrangement Order and wishes to remove the child for up to one month
Wendy Eves from MSB Solicitors discusses a case of international parental child abduction, a decision on which is currently awaited from the Supreme Court.
Common Reasons For Abduction:
Moving abroad for a better life in the sun
Moving abroad to be with a new partner
Moving back ‘home’ after a breakup abroad
Fleeing domestic abuse
Trying to avoid other parent having contact
Avoiding separation of parent from child through Court Order
When there is a Child Abduction very quick legal expertise is required and only a specialist in this area should be consulted.
Often when a child has been abducted you will hear the mention of the Hague Convention. The Hague Convention is a treaty signed by a number of countries that have committed to provide an expedious method of return of a child who has been abducted from one member country to another. The countries that signed to the Hague Convention agreed that if a child was removed to their country or retained within their country without the consent of those with Parental Responsibility, they would return that child to their country of habitual residence, for that country to determine the issue long term of where the child would live and remain permanently.
There are ?? Countries who are a party to the Hague Convention. And the first step when a child has been removed is to check whether the child had been taken to a Hague Convention country.
There are certain legal concepts that need to be considered before advising whether the Hague Convention can be used for the return of the child.
This legal concept is not defined but basically means the child’s ordinary residence prior to the removal. In determining the child’s country of habitual residence the Court has to look at all the facts of the case such as,
Shared intentions of the parties
The history of the children’s location
Settled nature of the family prior to the removal
It does not necessarily follow that nationality or place of birth will determine habitual residence.
Wrongful Removal Or Retention
In order for a removal to be wrongful it has to breach the ‘the rights of custody’ of the Applicant who’s rights were being actually exercised at the time of removal. In layman’s language this basically means that if one parent moves a child without the other parent’s consent, there has been a wrongful removal.
Wrongful retention is where a child for example; comes to England on holiday with the other parent’s consent however, following the end of the holiday the child is not returned.
Defences to Hague Convention:
There are six defences to a Hague Convention application
a)The Applicant is not actually exercising custody rights at the time of the removal or retention
b)The Applicant consented or acquiesced to the removal or retention
c)More than one year has passed from the time of wrongful removal or retention
d)The child is old enough and has a sufficient decree of maturity to knowingly object to being returned
e)There is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in a horrible situation
f)The return of the child would subject the child to violation of basic human rights and fundamental freedom
The Tipstaff is Richard Cheesley, he is The High Court Enforcement Officer. He can delegate his functions to the police but any Order of the Court must be directed to the Tipstaff at the High Courts of Justice whether acting by himself or his assistants or a police officer as follows. The Tipstaff have wide reaching powers to locate and bring children into protective custody.
Non means tested legal aid is available for the left behind parent in any incoming Hague Convention Proceedings.
Means and merit tested legal aid is available for the alleged abductor in Hague Convention cases, Wardship, Brussels two cases and Prohibited Steps.
There is no requirement for there to be evidence of child abuse or domestic violence which makes obtaining legal aid in urgent situations a lot easier.
International Child Abduction Central Unit:
Every country that is a signatory to the Hague Convention has to set up an International Child Abduction Central Unit that administers and deals with any cases of children that are abducted to their country.
If a child is brought to the UK, you need to complete ICACU form and send it by email. They will then forward it to a solicitor who will quickly issue proceedings in the country the child has been taken to. They only refer work to specialist solicitors on their panel who deal with this type of work. As well as dealing with Return Orders the ICACU will also deal with enforcement and issues of international contact.
Their details are;
Phone: 01203 911 2608
Reunite is also a very good organisation to contact if your child has been abducted, they are a charitable organisation that support families who’s children have been abducted.
Phone: 0116 2556 234
Orders That Can Be Applied For:
Hague Convention Return
Declaration of Habitual Residence
Prohibited Steps Order
Specific Issues Order
All Ports Alert
Seek And Find Order
Child Arrangement Order