Child Abduction: Getting Your Child Back After Ex-Partner Took Them To Another Country
There are various legal remedies in the domestic Courts of England and Wales to assist parents in returning a child that has been abducted. However, in a child abduction case, the ease and likelihood of a child’s return depend on whether the child has been taken to ‘Hague’ country or a ‘Non-Hague’ country.
What is a Hague Country?
A ‘Hague Country’, is a country that has signed up specifically to the international convention on applications under the Hague Convention on the Civil Aspects of International Child Abduction 1980 and the subsequent 1996 Hague Convention.
The primary objectives of the Hague Convention are to:
- Secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
- Ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
A list of current contracting countries can be found on the HCCH website here.
The Hague Convention essentially provides the Courts with the mechanisms and processes for Orders made in England and Wales to be recognised and enforced.
In addition to the Hague Convention, the UK also has protocols/declarations in respect of Pakistan and Egypt to secure the return of children who have been abducted and taken to these countries.
Child Abduction: Remedies in the Courts of England and Wales
Firstly and most importantly, the Court can order the return of a child from both a Hague and Non-Hague foreign jurisdiction. However, before making any order, the Court will first establish whether it has the jurisdiction to deal with the matter concerning the child and if so, under which mechanism.
The key statutory provisions are the Hague Convention 1996 (for Hague cases), the Children Act 1989 (for cases involving Orders that have already been made in England and Wales pertaining to children), the Domicile and Matrimonial Proceedings Act 1973 (for matrimonial proceedings) and the Family Law Act 1986 (for other orders where a child is/was habitually resident or where a child is currently present in England and Wales).
In matters concerning Hague countries, there is a detailed process involved whereby each country utilises their Central Authority and the Courts have strict interventions and reciprocal agreement to secure the prompt and safe return of the child.
Child Abduction in Non-Hague Countries
In Non-Hague countries, the processes vary drastically.
Applying for an Order under inherent jurisdiction is considered the most effective way of securing the return of a child to England and Wales. The inherent jurisdiction of the High Court is unlimited and generally cannot be circumvented except by an order of the Court or by the law itself via a Statutory instrument.
A Wardship Order is one of the ways in which the court exercises its inherent jurisdiction in relation to a child. A Court can make a range of orders in relation to a child who is a ‘ward of the Court’ which it deems necessary for the protection of the child. In addition to the Tipstaff orders described above and pursuant to section 33 of the Family Law Act 1986, the Court can direct parties and any other person who may have information, to disclose the whereabouts of the child, attend a hearing and or/or give evidence in relation to the child’s current location.
Pursuant to section 37 of the Family Law Act 1986, the Court can also require a person to surrender the UK passport of a child or any UK passport with his/her details on it. This usually will coincide with an order to the UK Passport Office prohibiting the issue of any new passports until further order. Where the other parent has a foreign passport, a Tipstaff Passport Order can be used under the inherent jurisdiction to restrict the abducting parent and request that they surrender their passport.
The Court can also make an Attendance Order requesting that the abducting parent returns to the UK and presents themselves for attendance in the Royal Courts of Justice.
There are also a number of draconian orders the Court can make to secure and enforce the return of a child. Many of these orders are rarely utilised but are readily available to the Court. These include a Committal Order (committing the abducting parent to imprisonment for contempt of Court), freezing orders (restraining the abducting parent from disposing or dealing with assets in England and Wales) and a writ of sequestration (whereby the Court seize and retain the abducting parent’s assets until the order in question is complied with). To assist with enforcement, particularly when there is a case involving a Non-Hague country, the Court can on rare occasions, identify the parties and publicise the case in the press or threaten foreign countries with doing so.
In addition to the above orders, it is normal practice for the Court to also make a Child Arrangements Order stating that the child should live with the remaining parent with a Prohibited Steps Order prohibiting the child’s removal from England and Wales. By doing so, this has the dual benefit of securing jurisdiction in England and Wales and can also aid a parent requiring evidence of ‘rights of custody’ to secure the return of the child from the foreign jurisdiction if there are also simultaneous proceedings occurring in the foreign Court.
In conjunction with the above information, you may find it useful to read our other blogs on the subject:
As all child abduction matters whether Hague or Non-Hague are complex, these cases are heard at the Royal Courts of Justice.
These types of cases move quickly and are dealt with on an urgent basis. Whilst you can represent yourself, it can be overwhelming and difficult to follow. It is always best in these type of cases to obtain advice from a child abduction specialist. Many of our solicitors at Anthony Gold have been trained in and specialise in complex child abduction matters and can provide you with urgent advice to help you return your child no matter which country they have been taken to. We will advise you thoroughly throughout the process, let you know which type of application is best in your situation, advise you on your prospects of success and provide you with excellent representation at Court if required.
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