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International Missing Children’s Day- what does the law say?

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What is Child Abduction?                                                    

Child Abduction is not kidnap. Child Abduction is the term used when one parent removes a child from their country of Habitual Residence without the consent of the other persons or bodies with rights of custody (usually the other parent).

What can I do if my child is abducted, or I suspect my child is going to be abducted, without my consent and taken abroad to another country?

 Seek immediate legal advice from a family lawyer with a specialist international practice.

England is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This Convention operates between contracting states to facilitate return of abducted children to their country of habitual residence. The Brussels II regulation also applies, and can be used in cases of international child abduction between most EU countries.

If you believe your child is about to be abducted imminently you should telephone the police to explain the situation and ask that they give consideration to putting a Port Alert in place. You should also seek immediate legal advice from a family lawyer with a specialist international practice, as you may need to obtain a court order urgently and out of hours.

Have immediately available to you:-

  1. Your child’s passport number;
  2. A recent photograph;
  3. Contact details of the adult who they were last seen with;
  4. A description of their physical appearance.

What can I do if my child has been abducted to a foreign country already?

Each country that is a signatory to the 1980 Hague Convention is required to designate a Central Authority to facilitate the conventions operation and help ‘left behind’ parents apply for their child’s return. In England this is the International Child Abduction and Contact Unit (ICACU).

If your child has been removed from England and Wales you should contact the ICACA who will then contact the Central Authority in the country where your child has been removed to on your behalf. The application for the child’s return is translated into the language of the country where the child has been removed to if necessary.

You could also go directly to specialist international family lawyer in the country to which they have been removed to and ask if they can take on your case without your having been referred to them through the Central Authority. Many specialist international family lawyers in England have a network of specialist international family lawyers in other jurisdictions and thus it may be your solicitor in England can help provide you with details of a lawyer abroad.

Act quickly

If your child is unlawfully removed or retained after a holiday or prearranged trip, it is extremely important to get legal advice from a specialist family solicitor and consider whether an urgent court application is required. Cases for return can be bought at any time in theory, but the longer things are left, the more difficult it can become. Under the 1980 Hague Convention there is a “settlement defence” after 12 months.

What if my child is removed to a country which is not a signatory to the 1980 Hague Convention?

In addition to the 1980 Hague Convention England is a signatory to several other Conventions. It is also bound by the European regulation known as Brussels II Revised. These other conventions and regulations are in force in some countries that are not signatories to the 1980 Hague Convention, and can also provide mechanisms for securing the return of abducted children. The court also has powers to make Orders under the inherent jurisdiction.

What if I want to move to another country with my child, but the other parent will not consent?

You need to apply to the Court for ‘Leave to Remove’

An Example of Child Abduction

Children, Bart, Lisa and Maggie, live at home in England with their mother Marge and her second husband Ned. Marge and the children’s father, Homer, separated a few years ago and following the divorce she and the children moved to St. Albans in England. Marge and Homer agreed that the children would spend either their summer holidays or Christmas holidays with Homer in America each year. It is the end of the summer holidays this year, and Homer is due to bring the children home on 30 August. Homer does not bring the children home on 30 August. Marge is unable to get through to Homer on the telephone, and the children have not been on Skype to her during the past week. Marge is extremely worried and she wants her children to return home as soon as possible.

Marge speaks to a solicitor, she contacts the ICACU and commences an application for the children’s return under the 1980 Hague Convention. The ICACU send Marge’s application to the US Central Authority and assist her in communicating with them. Proceedings are issued, with Marge instructing her lawyer in America from England. Marge travels to America for the final hearing. Homer defends Marge’s application, but he is not successful and the court in America makes an Order for Bart, Lisa and Maggie to return home to England with their mother.

At Rayden Solicitors we are family law experts and have specialists in international family law; we cover international law in respect of children, divorce and finances.

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