International child abduction: What you need to know

Did you know?

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

What is international child abduction?

The international legal landscape governing international child abduction is shaped by the 1980 Convention on the Civil Aspects of International Child Abduction. This convention dictates how countries handle cases of international child abduction, with over 100 countries as contracting parties. It's essential to note that the convention's force of law varies among these nations.

A child is deemed to be internationally abducted if:

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

2. They are wrongfully retained in a location that is not their country of habitual residence.

Wrongful removal or retention occurs when it happens without the consent of a parent exercising custody rights at the time or in the absence of a court order.

The convention's core principle is that a wrongfully removed or retained child should be returned to their country of habitual residence, allowing decisions about their future care to be made where they have their strongest connections.

Case law suggests that a child's habitual residence is where they are 'integrated in a social and family environment,' demonstrated by factors like language, school attendance, medical registrations, and familial ties.

What happens if a child is internationally abducted?

In cases where a child is removed or retained in a country that is a signatory to the convention without parental consent, the left-behind parent can file an application through the relevant authorities, such as the Scottish Central Authority in Scotland. This application is then forwarded to the Central Authority in the country where the child is present, initiating proceedings seeking the child's return.

When a child is brought to Scotland in a potential international child abduction case, proceedings are commenced in the Court of Session by solicitors instructed by the Scottish Central Authority. The parent in Scotland can then instruct solicitors to present defenses on their behalf, such as consent, objection of the child to return, risk of harm, or settlement.

How to avoid an allegation of international child abduction – the giving of consent

International child abduction may arise unintentionally, even in planned moves. Consent from both parents is crucial for international relocation. It is possible to defend against a Hague Convention application if the 'left-behind' parent gave consent to the child's removal or retention in another country.

Clear and documented consent is essential, recorded openly and irrevocably. Informal discussions or notes may not suffice, requiring formal recording and dating to prevent ambiguity.

Local authorities and international child abduction

Local authorities may find themselves involved in cases where parents return to Scotland after unsuccessful attempts to move their child abroad or when parents wrongfully remove or retain their children in Scotland.

The Court of Session rules necessitate intimation of such actions to the local authority's chief executive and the reporter to the Children's Panel. Local authorities should collaborate with solicitors specializing in child abduction cases to ensure appropriate measures and consents are obtained before a child travels abroad, preventing costly court processes and potential repercussions.