Child Abduction - Questions & Answers

Q: What is an abduction?

A: The essential elements are that:

• The child must be under 16
• There must have been a removal across an international boundary or the child must have been retained abroad (from the place of "habitual residence")
• The action taken was in breach of the left behind parent's rights of custody and;
• Those rights of custody were being exercised at the time (or would have been but for the removal or retention).

Q: What are rights of custody?

A: Rights of custody are defined as rights relating to the care of the child and in particular the right to determine the child's place of residence. In almost all cases the court will find that a married couple or those with parental responsibility have such a right.

Q: What is the Hague Convention?

A: The Hague Convention is an international treaty to which more than 70 countries are signatories. The purpose of proceedings under the Hague Convention is to establish in which jurisdiction decisions relating to the custody and welfare of the child should be decided. The first and foremost aim is to secure the prompt return of the child to his or her country of habitual residence. The defences are limited and the child's welfare is not paramount.

Q: Are there any steps that can be taken to prevent an abduction?

A: It is possible to obtain orders under the Children Act to prohibit the child's removal from the jurisdiction of England and Wales. Orders for the surrender of passports can be obtained in appropriate cases. There is also the port alert system which enables the police to prevent the abducting parent from leaving the jurisdiction. Practical help can be obtained from Reunite, the charity for abducted children.

Q: Can child abduction lead to criminal proceedings?

A: Under the Child Abduction Act 1984 it is a criminal offence in England and Wales for any person connected with a child to take or send the child out of the United Kingdom without the consent of any other person who has parental responsibility for the child.

Q: Is public funding (Legal Aid) available to take proceedings under the Hague Convention?

A: Non-means tested public funding is available for parents who are requesting the return of children through the English International Child Abduction and Contact Unit to a foreign jurisdiction. This is not available for the parent who is alleged to have abducted the child to England and Wales. If they apply for Legal Aid it will be subject to a means and merits test. Further information upon financial eligibility can be found at the Legal Services Commission website.