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:
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 firstname.lastname@example.org or 020 7940 3903 to arrange an urgent appointment.
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