The remedies available are the same for any parent whose child has been abducted to any country whether the country is a Hague country or Non-Hague country.  The likelihood and ease of enforcing any orders made in the Courts of England and Wales will be dependent on the laws of the specific country and the pre-existing relationship that England and Wales have with that country. This means that you will need to act quickly and FIRST obtain legal advice from a lawyer who specialises in the law of that country before you consult a lawyer in England and Wales. 

 

We suggest that you obtain advice from a lawyer actually residing and currently practising in the country as opposed to one who is aware of the law there. The reason for this is a lawyer residing there will not only be able to advise you of your current legal rights as a parent in that country but will also be able to advise you on the current practicalities of locating your child if you do not have an exact address or knowledge of where they are staying. In addition, the lawyer will be able to advise you of the enforceability of an order in England and Wales.  

 

Once you have received advice, do ensure that any advice you are given by the foreign lawyer is in writing. This will assist you in the event that your matter proceeds to Court in England and Wales.

 

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 for Non-Hague child abductions are 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).

 

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:

 

What can I do to stop my ex-partner from taking or abducting my child to another country? 

 

My ex-partner has abducted my child and taken them to another country. How do I get my child back? 

 

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 types 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.

 

Please contact Trainee Solicitor, Lola Ajayi at ova@anthonygold.co.uk or 020 7940 3903 to arrange an urgent appointment.

 

Get Free 20 Minutes of Initial Advice

Are you facing a case of child abduction? Is your ex-partner trying to take your child to another country? The simple answer to these questions would be to seek legal advice and act quickly. It is harder to recover a child taken from this jurisdiction than it is to prevent the removal.

 

Child abduction is a distressing, difficult, and complex area of law. It is an area that requires a thorough knowledge of the law of England and Wales relating to children. Furthermore, it also requires international law about the enforceability of any orders made in England and Wales.

Child Abduction: The Law in the United Kingdom

Child Abduction often involves dual areas of domestic law in England and Wales; namely, criminal and family.

Criminal

Child abduction is a criminal act under the Child Abduction Act 1984 (CAA 1984).

Section 1 of the CAA 1984 states that a parent has committed the offence of abduction if they take or send their child under the age of sixteen out of the United Kingdom without the appropriate consent.

Appropriate consent means the consent of each of the following:

1. (i) The child’s mother; (ii) The child’s father, if he has parental responsibility for the child; (iii) Any guardian of the child; (iii) Any special guardian of the child; (iv) Any person named in a child arrangements order as a person with whom the child is to live; (v) Any person who has custody of the child; or
2. The leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or
3. If any person has custody of the child, the leave of the court which awarded custody to him.

A parent does not commit an offence if they are named in a Child Arrangements Order as the resident parent/parent with whom the child ‘lives’. They take the child for less than one month.

Family

Child abduction is also prevented, regulated, and remedied under Family Law.

To prevent the perceived or alleged abduction of a child, a parent who is unable to obtain appropriate consent to take a child out of the jurisdiction of England and Wales must make an application for a Child Arrangements Order to determine who the child should live with and a Specific Issue Order to obtain permission from the Court to live with the child abroad.

Conversely, a parent who believes their child is about to be abducted also has legal remedies to prevent it. The parent can make an urgent application in the Family Courts for a Child Arrangements Order to determine who the child should live with, a Prohibited Steps Order to prohibit the other parent from removing your child from this jurisdiction, and prohibit the other parent from applying/obtaining travel documents.

The parent may also request a Specific Issue Order for the child’s passport to be surrendered and retained by the parent and/or their solicitors. The Court also has the ability to make an order preventing the Passport Office from issuing any other passport or travel documents to a parent who is believed to be planning to abduct a child.

The Family Court also has the power to direct government agencies to disclose a child’s whereabouts. This is done by making a disclosure order and can gain access to communications from telecom companies, information from banks, and building societies. Flight information from airline companies and information from the Home Office can also be accessed.

The Court takes Child Abduction very seriously

Providing there is evidence of a potential abduction, the Court is very likely to grant emergency orders to prevent abduction. In the case of abduction, prevention is always easier than cure.

If a parent believes that their child may be taken imminently (in the next 1-2 days),  the Court in A v B confirmed that a parent can also make a freestanding application for a ‘Port Alert Order’ to prevent the child from being removed from the Country.

A port alert is only used in emergencies. It can be issued by the Court or directly by the police using criminal law.  The police can use the port alert to flag a child’s name at all UK airports. This would stop the child’s departure. A port alert lasts up to 28 days.

Several other orders can be made in the High Court. If a child has been taken by another parent and it is not known where that child is or whether the child has already left the country, one other remedy is issuing wardship proceedings in the High Court.

By making the child a ward of the Court, instantly prohibits the removal of the child from the jurisdiction without the permission of the Court and can also trigger the assistance of the Court’s enforcement officers, known as the Tipstaff.

Three Types of Orders Made in the High Court which can be directed at the Tipstaff

‘Passport Order’

The Court use this order to direct the Tipstaff to remove passports and travel documents from the child and the parent who is believed to be the abductor.

‘Location Order’

It allows the Tipstaff to search and locate the child and the parent who is believed to be the abductor.

‘Collection Order’

‘Collection Order’ allows the Tipstaff to attend an address where the child is known to be present to collect the child and place the child in the care of a specific individual which is usually the other parent.

Usually, these orders also accompany a Port Alert Order as described above.

In addition, to prevent the perceived or alleged child abduction, under wardship proceedings, the Court can provide permission to a parent to leave the country for a limited period whilst requiring the potential abductor parent to enter into a bond to ensure that the child is duly returned.

The parent may also be required to provide an undertaking to procure the surety of a bank or financial institution and/or request that the parent deposits money or a charge on a property.

In conjunction with the above information, you may find it useful to read our other blogs on the subject:

My ex-partner has abducted my child and taken them to another country. How do I get my child back?

 My ex-partner has abducted my child and taken them to a Non-Hague country. How do I get my child back? 

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 types 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. We will let you know which type of application is best for your situation. If you are worried about the prospect of success, we will advise you about that as well. Finally, we will provide you with excellent representation at Court, if required.

Please contact Trainee Solicitor, Lola Ajayi at ova@anthonygold.co.uk or 020 7940 3903 to arrange an urgent appointment.

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As an introduction to our service, we offer free 20 minutes of initial advice on all aspects of Family Law including:

• Divorce
• Finance
• Pre-nuptial Agreements
• Post-nuptial Agreements
• Cohabitation Agreements
• Property Ownership Agreements/Deeds of Trust
• Child Arrangements/Parenting Agreements
• Child Abduction
• Surrogacy/Parental Orders