What is Child Abduction?
Child abduction is the unlawful removal or retention of a child from the state where they are habitually resident.
A removal or retention is unlawful if the consent of the other parent has not been obtained and that other parent has parental rights in respect of that child (in the jurisdiction of England and Wales this is referred to as ‘Parental Responsibility’).
What is the Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides a prompt method to return a child internationally abducted by a parent from one member country to another.
What is Brussels II Revised?
Brussels II Revised is European legislation which applies to proceedings in which the country of habitual residence and the country of retention/removal are both EU member states.
Is it possible to defend a Hague Convention application (on the civil aspects of Child Abduction)?
Yes, it is possible to defend an application under the Hague Convention in limited circumstances.
An example of some of those limited circumstances that might give rise to a defence are as follows:
- The child in question is of an age whereby he/she does not wish to return to his/her country of habitual residence and expresses an objection to the court via Cafcass or their own legal representation.
- The child and/or the parent who has taken/retained the child from their country of habitual residence claims that to return to the country in question would place them and/or the child in a situation whereby they will be subjected to intolerable harm.
Are all countries signatures to the Hague Convention (on the civil aspects of child abduction)?
No not all countries are signatories to the Hague Convention.
For more information as to whether a country is a signatory to the Hague Convention of Civil Aspects of child abduction please visit www.reunite.org
What remedies are available if a country is not a signatory to the Hague Convention?
If your child has been removed/retained from the jurisdiction where they are habitually resident, but the other country is not a signatory to the Hague Convention (on the Civil Aspects on Child Abduction) then you will not be able to rely upon the beneficial legal mechanisms which mean the matter is dealt with quickly via co-operation and swift case management.
However, there are other options should removal or retention be in a non Hague Convention Country:
- Application under Section 8 of the Children Act for a Prohibited Steps Order
Where you fear that your child may be imminently removed from the jurisdiction of England and Wales it may be advisable to apply to the court for an urgent order stating that the child is not to be removed from their normal place of residence (whilst matters are looked into in more detail by the court).
A prohibited steps order can be accompanied by an application for a Port Alert to place the Border Agencies on notice that the other parent and child are not permitted to leave the jurisdiction.
- Wardship Application
Where you fear that your child may be imminently removed from the jurisdiction of England and Wales or your child has already been removed from the jurisdiction, it may be appropriate to apply to the High Court for your child to be made a Ward of Court.
Under this type of order the court has the power to order that a child is not removed from the jurisdiction, this type of order can be accompanied by a Location Order which will result in the removal of the travel documents of the child and the other parent.
Will I be able to obtain legal aid if my child has been abducted or I feel my child may be abducted?
If your case has come to us via the International Child Abduction Unit for the return of a child under the Hague Convention on Civil Aspects of Child Abduction and you are seeking the return of the child from the jurisdiction of England and Wales you will automatically be entitled to legal aid on a non-means, non-merits basis.
If your case has not come to us via the International Child Abduction Unit then we will have to assess your entitlement to Legal Aid.