Child abduction

Child abduction, often involving a parent due to custody disputes, can cause significant distress. Read on to learn about how legal mechanisms like the Hague Convention can facilitate the return of abducted children, while mediation may offer a swift and amicable resolution alternative. In non-Hague countries, specific legal procedures and support from the Foreign Office are essential.

What is child abduction?

Child abduction typically involves a parent. Often due to fear and uncertainty, a mother or father may decide to take a child from their place of residence without the consent of the other parent. This is known as child abduction and can cause considerable turmoil for the child and left-behind parent.

Our lawyers will sensitively advise on this specialist area of law.

How do I ensure that my child is returned to me?

For parents who have been left behind following the abduction of their children, our lawyers will work fast to ensure their safe and immediate return. The Hague Convention on the Civil Aspects of International Child Abduction (1980) helps protect abducted children. It is a legal mechanism available to parents seeking the return of, or access to, their children who have been wrongfully removed or retained in another country that is a party to the Convention.

Where a child has been wrongfully removed or retained and at the beginning of the court proceedings, it has been less than a year since the removal or retention of the child in a particular jurisdiction, the court shall order the return of the child straightaway under the Hague Convention.  Even if court proceedings begin after the one-year period, the court will still order the return of the child unless it can be demonstrated that the child is now settled in its new environment.

 

There are two elements to the word “settled”:

• the physical element relating to, and being established in, a community and an environment, and
• an emotional constituent denoting security and stability that is permanent in nature.

It is important to act quickly if a child is abducted. Speak to one of our lawyers today for clear advice on the legal recourse available.

When countries are not signatory to the Hague Convention

The Convention seeks to deal fairly and speedily with cases of parental child abduction across borders. However, many expatriates that we advise are resident in countries that are not signatory to this convention. Our lawyers are experienced in the procedures required when the return of abducted children is not possible through the Hague Convention.

Some countries such as the United Arab Emirates, Kuwait, and Bahrain are not signatories to the Hague Convention. Remedies are available through the English courts for children abducted to these countries. The appropriate course of action will be dependent on several factors, including whether there are existing orders that the abductor has breached and whether the court in England and Wales has the ability to make an order under its jurisdiction. Consideration may be given to issues of domicile and habitual residence. Assistance may also be sought from the Foreign, Commonwealth and Development Office (FCDO), which has published a range of country-specific guides in relation to non-Hague Convention countries.

Mediation for child abduction or relocation

Mediation and other forms of dispute resolution are becoming increasingly popular to resolve child custody disputes involving expats. The Reunite International Child Abduction Centre developed and trialled a mediation pilot scheme for use in cases of international parental child abduction. In all cases, the child had been retained in the UK and the other parent was pursuing court proceedings for its return. Of the 28 cases they mediated, 75% of them were able to reach agreement as to where the child should live and the importance of a continuing relationship with the other parent.

Mediation offers an opportunity for details to be negotiated, so that an agreement can often be reached between two parties whose position initially seemed polarised. When the children will see the left behind parent and where, telephone contact, who will pay for flights and what school the children will go to are the sort of issues which will need to be decided during Mediation.

Often, these cases can be resolved swiftly, without the need for expensive court proceedings. A quick resolution to a case is of particular importance if a child is not seeing a parent or has been removed from their primary carer. A further advantage of a mediated settlement is that parents are much more likely to abide by the terms of an agreement which they have signed up to rather than one which has been imposed upon them by a Judge. Mediation is focused on resolving disputes as amicably as possible. This means that continued acrimony between parents is avoided and the damage to the child is limited.

The International Mediation Centre for Family Conflict and Child Abduction is a Berlin based NGO which organises mediations for parents in any cross border custody, contact or child abduction dispute. They use expert family mediators who specialise in cross border conflict. The cases are co-mediated and, crucially, one mediator will share the same nationality and speak the same language as each parent.