UK: International Child Abduction and the Hague Convention on the Civil Aspects of International Child Abduction (1980)

Last Updated: 12 January 2011
Article by Idnan Deen

The issue of Child Abduction has become an ever more increasing worry for families where one parent lives abroad in recent times. As a result England and Wales have entered into numerous agreements to safeguard the rights of the non-abducting parent and the children. These have been formalised into what are known as The Hague Convention, the European Convention and the Revised Brussels II Regulation. All three of these are based on a system of Central Authorities which handle all Child Abduction cases under these three systems. The Central Authority for England and Wales is located in the Office of the Official Solicitor and Public Trustee and is called the International Child Abduction and Contact Unit (ICACU).

The area of Child Abduction is too vast for the remit of this article and therefore I shall concentrate solely on the practical aspects of The Hague Convention and the basic steps a parent who faces the prospect of their child being abducted needs to arm themselves with. A list of the signatories to the Hague Convention can be found at http://www.officialsolicitor.gov.uk/os/icacu_international.htm.

Child Abduction cases come in 2 different types which vary procedurally and can involve either a child removed from England & Wales or a child removed from another country party to the Convention to England & Wales.

Incoming cases

A parent or an individual who holds rights of custody (the right to parent that child in the country the child has been removed from, such as a grandparent with Residence in England and Wales) can make an application for the return of the child directly to the Central Authority of the country in which the child was previously located. This application is then forwarded to the Central Authority of England & Wales who will then assess and forward the application to one of a select few specialist solicitors who will then represent the applicant parent throughout the proceedings.

The solicitor will then attend the High Court in London to obtain orders to protect the child immediately after the proceedings start and if necessary to locate the children's whereabouts if they are unknown.

Parents concerned with the costs of such an application can put their minds at ease in the knowledge that non-means tested (free) legal aid is available to applicants seeking the return of a child under the Hague Convention. Therefore, there will be no costs involved for the Applicant parent throughout the proceedings save as to the possible costs of attending the final hearing in London. However, even this cost may be covered by the parent's legal aid and parents are advised to raise this issue with their appointed solicitor at the earliest opportunity.

Outgoing cases

Outgoing cases involve children who have been abducted or retained (not returned to England & Wales) outside of England & Wales in a country which is party to the Hague Convention. In these cases the parent seeking a return must immediately contact a solicitor or the Central Authority of England & Wales and complete an application for the return of the child. The application is then forwarded onto the Central Authority of the country where the child has been abducted or retained in. The Central Authority of that country will then deal with the matter in whichever manner they have put in place to comply with their Hague Convention obligations. In an outgoing case the Central Authority of England & Wales will keep the Applicant parent up to date and assist them in any way that they can. It should however, be borne in mind that the Central Authority of England & Wales cannot force another country to deal with the matter in a specific manner but can press to ensure a swift resolution of matters.

Although legal aid in the foreign country will depend on the systems of that country the costs involved in advising and assisting a parent in making the application to the Central Authority can be covered by legal aid. However, parents are encouraged to speak to the solicitor or/and the Central Authority of England & Wales as to whether legal aid is available in the foreign country as each country has varying provisions

Conclusion

With the ever increasing number of cases of child abduction both within the borders of Europe and beyond parents can rest more easily following the implementation of The Hague Convention. Legal provisions are now in place to combat this ever increasing pseudo-criminal behaviour and are in most cases effective in providing legal and practical assistance to those parents and children wronged by the actions of other parent's unilateral actions.

However, parents are reminded that even within the provisions of the Hague Convention both parents are encouraged to attempt a resolution of disputes through mediation or agreement. Both the Central Authorities involved and the legal representatives will work towards achieving the swift return of any child wrongfully removed or retained either through agreement or more draconian Court proceedings.

Should you have any suspicions that your child may be abducted or has already been abducted, it is imperative that you act swiftly in contacting a lawyer or the relevant Central Authority. The early stages of any Child Abduction are the most vital and should the abducting parent have the opportunity to avoid detection in the initial stages of the abduction it may prove near impossible to locate the child at a later stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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