UK: A Single Approach To Abductions?

Last Updated: 15 November 2016
Article by Liz Andrews

The 2015 case of Re C (internal relocation) appeared at the time to dramatically alter, and simultaneously clarify, the approach to be taken by the courts in relocation cases. Re C seemed to state that whether a relocation is internal or international, the same principles will be applied by the court in determining whether the move is to be permitted. This therefore provided clarity to a line of case law providing variable interpretations as to the weight to be placed on such factors as the intentions of the relocating parent.

In many ways, this new approach made sense. Given the ease of international travel today, moving a child to the other end of Great Britain may be just as difficult a move for the remaining parent, and indeed the child, as a move to mainland Europe, for example. Therefore it can be difficult to create and justify regimes based upon distances alone.

The case of Re R [2016] attempted to take this amalgamation of approaches one step further. As well as aligning the principles applicable in relocation cases, the father in Re R sought to persuade the court that abductions, whether international or not, should be subject to 1980 Hague Convention type-proceedings and principles. Essentially, this meant the father was seeking a summary (and, so, immediate) return of his child from the North East of England back to Kent.

The father's argument in Re R seemed premised on the notion that borders do not, or should not, make a difference in terms of the legal principles to be applied when deciding whether children can move across them or be returned over them, whichever the case may be.

The father characterised the actions of the mother as abduction. However, at present there is no legal requirement to obtain the permission of a court before a parent moves with their child within the UK. For the remaining parent to prevent an internal move, they must apply to the court for a Prohibited Steps Order, or a Child Arrangements Order, which could grant them a greater say in relation to such matters as where the child lives. This raises the question of whether internal parental abduction actually exists as a legal matter. The court in Re R advances on the basis that this is a case about abduction, as the father contends, without appearing to challenge this proposition or indeed the idea of domestic 'abductions' existing in the legal sense at all. The judgement is, therefore, in its terminology and approach to the discussion, quite confusing and potentially misleading.

However, accepting that Re R is a case about abduction, it can firstly be questioned whether principles from Re C, a relocation case, should apply here at all.  It could be argued that relocation and abduction are in some senses similar actions, specifically in terms of the disruption and emotional impact that such a move may have on the parties and in particular a child. At the heart of both is the action of uprooting a child and placing distance between them and the other parent. However, crucially, in relocation situations a child would be more prepared for the move. Contact arrangements would be in place and the process of moving away would be a more gradual one. The fact that abduction is a wrongful removal without consent, with likely different motivations than a relocation and so an action which should be discouraged, would seem to make the direct lifting of a principle derived from relocation cases into one concerning abduction inappropriate.

Secondly, it is questioned whether such a merger of approaches was in fact what the court in Re C envisioned.  The court in Re R said that Re C did not in fact represent a 'sea change in the law'. What was central to relocation cases, whether internal or international, was the welfare of the child, and it was only in light of this notion (and so S1 (1) of the Children Act 1989) that the comment of the court regarding there being no need to differentiate between processes was made. The only apparent change in principle that did in fact emerge from Re C was that there is no exceptionality principle, meaning that it is not only in exceptional circumstances that relocating within the UK will be prevented.

Even if the court in Re C had said that internal and international relocation can be treated as the same, this integrated approach would not transfer to abduction easily. The example that the court took in Re R to highlight this concerned a key principle of the Hague Convention process, specifically summary returns. The summary return principle in international abduction refers to returning a child to their place of habitual residence, which is a broad concept, referring to a specific country and not a particular town or city. Therefore the concept as it exists in international abduction cases would not directly transfer to internal abductions.

Further, Re J [2005] made clear that 1980 Hague Convention principles do not apply in non-Hague Convention cases, which essentially an internal abduction would be akin to. The court in Re J made clear that internal abduction remains a matter for Children Act proceedings, which does provide in many ways for a more favourable regime. The Children Act process can allow for more flexibility and for a deeper understanding of the wider circumstances of the case to be obtained prior to deciding whether to return the child or not. This can be particularly vital in cases where allegations of violence have been made. This contrasts to the Hague Convention's strict prompt return principle. This does not allow for the merits of a case to be considered prior to return and so does not provide for discussions as to the welfare of the child.

In seeking to persuade the court that summary returns should be the usual response in internal abductions, the father relied upon such arguments that it would be in the best interests of the child that the status quo be restored, that the disruption to the child of being moved without the other parent's permission could be great and that neither parent should have the power to make such substantial changes in their child's life unilaterally. The court viewed all such arguments as relevant, but in relation to the wider and key consideration of what the welfare of the child required.

This case consequently appears to highlight a gap in the law. The left-behind parent when the child has only been moved within the UK is left without recourse to a system which can immediately, or even relatively quickly, provide for the return of their child. This then leads to a disadvantage if proceedings do arise, as by the time the case sees the inside of the court, the relocating parent and child have had a chance to settle into their new lives, and the discussion of welfare now also focuses on the harm should the child return to their original home and not just the harm concerning the move in the first place. The process therefore seems to reward the parent who decides to, potentially without any warning, separate a child from the other parent and familiar surroundings, which is not a position which sits comfortably with many.

However, the court in Re R did say that in some cases the right order would be to immediately return a child to their former place of residence. This could not be the standard response though. An immediate return following an internal unilateral move would remain the outcome of a case-specific, welfare-based evaluation.

It seems that Re R has provided clarification on two matters. Firstly, concerning both abduction and relocation, it has stated that Re C does not have the effect of removing the need for separate, border-based regimes. Secondly, it has reinforced that it is arguments based upon the welfare of the child which will remain determinative in internal abduction cases. (If such cases exist....).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions