International child abduction is on the rise – so what can we do to help families affected?
International child abduction is a specialised area of law fraught with complexities; unfortunately the Covid-19 pandemic has only created an extra layer of difficulty and issues to consider for lawyers, clients and the courts alike.
What are the laws surrounding International Child Abduction?
International child abduction occurs when a child is taken out of the country in which they usually live, without the permission of all the people with parental responsibility or an order of the court permitting the removal of the child.
In the UK, under the Child Abduction Act 1984, it is a criminal offence for an individual connected with a child (e.g. a parent) to take that child out of the UK without the consent of all persons with parental responsibility, or permission from the court. There are exceptions where a ‘child arrangements order’ is put in place by the courts which regulates with whom a child is to live – in these circumstances, the person with the order in their favour may remove that child from the UK for a period of up to 28 days.
There are a number of legal procedures, including international frameworks, to ensure that abducted children are swiftly and safely returned home. Since the UK left the European Union, the often previously relied on Brussels II regulations will no longer be able to assist or provide protection from international child abduction. However, the Hague Conventions 1980 and 1996 can still be relied on, provided a child is removed to a country that has signed up to those conventions. These conventions provide the benefit and reassurance that the relevant countries have a common recognised framework to mutually assist each other to ensure the safe return of the child. If these conventions do not apply, it is still possible for the High Court in England to exercise its jurisdiction to assist with the return of an abducted child.
The impact of the pandemic
Restrictions on international travel, border closures and quarantine measures, in addition to persisting Covid-19 rates around the world, have introduced a number of complexities to cases involving international child abduction.
When considering child abduction matters in the context of the pandemic and the constantly changing government guidance, courts are now expected to consider the practicalities of any decision they might make with regards to returning a child. Amongst these practical implications are the possible risks to the child and parents who may be required to travel, how they will travel in light of restrictions and how quarantine will be carried out.
Whilst some might suggest that the pandemic and associated restrictions have provided barriers to child abduction, it has also provided a new excuse to parents wanting to remove their child from the country without the appropriate consents. Some individuals, such as the mother in the recent case of N (a child) , have controversially justified the removal of a child from their country of residence to a country considered ‘safer’ in light of the pandemic. Fortunately, as in the case of N, the courts have quickly established that such reasoning is not a defence to child abduction and this stance will prove absolutely vital in inhibiting similar cases coming to court.
Similarly, the pandemic has provided a convenient excuse for parents not to return a child to their country of residence as demonstrated by the case of Re PT (A Child) . In this case, the child had been taken from Spain to England by their mother who argued that returning the child to Spain would lead to a ‘grave risk of harm’ or ‘intolerable situation’ owing to the pandemic. It was considered by the courts that whilst international travel was a risk, it could not be deemed grave and the child was ordered to return to Spain.
It is evident from the string of recently reported cases of child abduction in the wake of the pandemic that the courts have been forced to consider new and more practical issues. It seems that cases will very much turn on their facts and individual circumstances, owing to the constant developments in countries’ restrictions and risks. It will be interesting to see how the courts continue to balance these considerations, particularly as travel restrictions are unlikely to see significant easing for some months still.
RWK Goodman is a City law firm with a local presence. Our Family Team is based in the Home Counties as are many of our clients. Contact specialist Emma McMorrow for advice on divorce, separation and child arrangement matters.