International child abduction: What you need to know

Did you know?

There are over 100 contracting parties to the Hague Convention (although the Convention does not have the force of law in all of these countries)

The legal framework governing international child abduction in England and Wales is shaped by the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This convention establishes how cases of international child abduction are handled, with over 100 countries as contracting parties. However, the convention's enforcement varies across jurisdictions.

What Constitutes International Child Abduction?

A child is considered to be internationally abducted if:

• They are wrongfully removed from their country of habitual residence.

• They are wrongfully retained in a country that is not their habitual residence.

Wrongful removal or retention occurs when this is done without the consent of a parent who is exercising custody rights at the time, or contrary to the terms of a court order.

The core principle of the 1980 Hague Convention is that a child wrongfully removed or retained should be returned promptly to their habitual residence, allowing courts in that jurisdiction to determine decisions about their care and future.

Case law defines a child’s habitual residence as the place where they are integrated into a social and family environment, based on factors such as language, schooling, medical registrations, and family ties.

What Happens if a Child is Internationally Abducted?

If a child is removed or retained in a country that is a signatory to the 1980 Hague Convention without the consent of a parent, the left-behind parent can file an application under the Convention. In England and Wales, this is done through the Family Court, who are the designated Central Authority for such cases.

The Family Court can forward the application to the Central Authority in the country where the child is present, initiating legal proceedings for the child’s return.

If a child is brought to England and Wales in potential violation of the Convention, proceedings can be initiated in the High Court (Family Division). The abducting parent can present defences, such as:

• Consent: The left-behind parent had agreed to the removal or retention.

• Child’s objections: The child is mature enough to object to the return and expresses a strong preference to stay.

• Risk of harm: Returning the child would expose them to physical or psychological harm.

• Settlement: The child has become settled in their new environment.

Avoiding Allegations of International Child Abduction

International child abduction can occur unintentionally, even in well-planned moves. To avoid such allegations, it is essential to obtain clear and documented consent from the other parent for international relocations.

This consent should be recorded in a formal, dated, and irrevocable format, such as through written agreements or court orders, to eliminate ambiguity. Informal agreements or verbal discussions are insufficient to prevent potential disputes.

Role of Local Authorities

Local authorities may become involved in cases where parents return to England and Wales after failed attempts to relocate their child abroad, or in cases where a child has been wrongfully removed or retained within England or Wales.

In these situations, local authorities must ensure compliance with court procedures and international obligations. Intimations of such cases are made to the Director of Children’s Services and may involve the Children and Family Court Advisory and Support Service (Cafcass). Local authorities should collaborate with legal professionals specialising in child abduction to ensure all actions align with domestic and international law, minimising disruption to the child and avoiding unnecessary legal disputes.

By adhering to the legal requirements and ensuring formalised consents, parents can navigate international relocation and custody matters while mitigating the risks of international child abduction allegations under English and Welsh law.