If a parent removes a child from the home or country of residence without the permission of the other parent or a Court Order, then this is regarded as a criminal offence in the UK.
A UK resident can take a child abroad for up to 28 days if there is a Residence Order in their favour or Child Arrangements Order when the resident is named as the person with whom the child is to live.
If a child is removed to another country without permission or Court Order then that other country can order the child to be returned PROVIDED that the other country subscribed to the Hague Convention on Child Abduction.
Emma Bailey and Laura Atkinson have experience in International Child abduction cases and Emma is listed on the Reunite directory.
We can advise you if you are entitled to Legal Aid (also known as Public Funding). Living abroad does not prevent a person applying for public funding and in cases involving the left behind parent in a child abduction or an application for contact with a child under the Hague Convention, public funding is usually automatically available, irrespective of merit or wealth.
Even if you are the abducting parent, you are entitled to apply for public funding but your means will be assessed and you cannot expect to received public funding automatically.
The list of countries which subscribe to the Hague Convention (and EU Convention) is available here.
Reunite also have links for many countries.
In this section you will find links to other charities, government departments, and organisations that offer advice, information and support on a wide range of subjects.
Seeking the return of a child wrongly removed to, or retained in, this country
Incoming Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateraltreaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.
The convention requires the return of a child who was a “habitual resident” in a contracting party immediately before an action that constitutes a breach of custody or access rights. The convention provides that all contracting states, as well as any judicial and administrative bodies of those contracting states, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.
We can help you locate your child or children in this country and apply to the court for their immediate return.
How do I apply for the return of my child back to their home?
Each country that is a signatory to the Hague Convention will have a department known as a Central Authority to which a left behind parent submits an application.
They will then consider the application and submit it to the central authority of the country where the child is believed to have been taken. If it is to England and Wales, this will be the International Child Abduction and Custody Unit (“ICACU”) who will then instruct a firm of solicitors, such as Access Law, to assist you. There are a number of Firms on ICACU’s list of recognised specialists. You are at liberty to request a specific firm of Solicitors if they are on that list, if you wish.
Those solicitors will then apply for public funding, locate the child or children, issue proceedings and arrange for the removing parent to attend court.
If necessary, they can also ask the court to seize passports and travel documents.
What if my child has been taken abroad without my consent?
Legal advice should be taken immediately. Once it has been considered that a child is habitually resident here in the UK, there are two important steps to take.
First, if the destination country is known, an immediate application should be made to the International Child Abduction and Custody Unit (“ICACU”) who are the central authority for England and Wales. The application form and guidance can be found here: https://www.gov.uk/government/publications/international-child-abduction-and-contact-unit-application-form
Second you should consider making an application to the High Court for Orders seeking the return of the child or children to England and Wales.
Some countries are not able to process applications for the return as swiftly as others and alternative orders in this country may also be able to be enforced in those countries.
Defending an application to return a child to another country
The Convention limits the defences against return of a wrongfully removed or retained child. To defend against the return of the child, the defendant (the removing parent) must establish on the balance of probability:
(a) that Petitioner (or left behind parent) was not “actually exercising custody rights at the time of the removal or retention” under Article 3; or
(b) that Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or
(c) that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or
(d) that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or
(e) that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b); or
The Court in this country is very strict, particularly with regard to the grave risk and intolerable situation. They will seek, if possible, something called protective measures from the country of origin and the left behind parent to reduce any risk to the child.
Seeking contact/access with a child in this country
Article 21 of the Hague Convention makes provision for the assistance to be provided with the acquisition of the organising and protecting of rights of access. Public funding is available and is dealt with the same as an abduction case, that is the public funding is non means and non merits based. The proceedings will usually be commenced in the High Court.
The principles that apply to such an application are the same as any application under the Children Act, 1989, the law in this country that usually governs the welfare of children.
The Act requires the courts to consider the welfare of the child or children as the paramount consideration.
It is an almost inevitable consequence that when, or after, parental relationships in an international family break down, one parent may wish to relocate.
Any parent seeking to relocate with the children must be very clear in their proposals if they are to satisfy the court that the move is in the best interests of the children. There are certain key features every court would wish to see.
Your reasons for wanting to relocate:
- Where you propose to live (including full information of the amenities and maps of the area)
- How the move is to be funded
- Information about what the area has to offer the child e.g. nurseries/school, after school and sports
clubs, medical facilities etc.
- How far you will be from your support network of friends and/or family members
- Full details of your proposed employment, working hours, who will look after the child and take to/from nursery/school
- Impact of changes in language and culture on the child
- Full information of schools, whether a place will be available, what fees and continuity or interruption with existing education
- Proposals for contact between the child and the other parents – and who will pay for it
- The effect on you, emotionally, physically and financially of a refusal to relocate.
In the case S (a child) 2015 EWHC 3288 (Fam) Access Law successfully represented a mother in her application to permanently remove her child to a non Hague country http://www.bailii.org/ew/cases/EWFC/HCJ/2015/86.html.
The Case of Re: C late in 2015 clarified the approach to internal relocation which means the court will consider the best interests of the children as being paramount, just as in international relocation.
Re: C involved a move from London to Cumbria which to some parents may just as well be abroad. logistics of contact and the affect on the relationship between the left behind parent and the child may be changed forever.
The aim of the courts in all relocation applications is to determine whether the move can be done in a way which is compatible with the child’s welfare, especially in terms of maintaining the child’s relationship with the non-moving parent. The aim of the courts in all relocation applications is to determine whether the move can be done in a way which is compatible with the child’s welfare, especially in terms of maintaining the child’s relationship with the non-moving parent.
International Family Cases
We have the expertise to advise about:
Whether it is children being taken in or out of this country without permission, parents in foreign countries seeking contact or access to their children in this country or a parent seeking to move abroad to start a new life, we have the expertise to help
When your marriage breaks down, decisions about your finances will need to be made. We can advise you on which court in which country may be best for you to resolve any issues.
You may have already been divorced in another country but perhaps no financial matters, or only some of them, have been resolved. We can advise you of your options of pursuing financial claims in this country even though you divorced in another.
Getting divorced if one or both spouses live abroad.
Sometimes, when a marriage fails, there are more than one country in which divorce proceedings can commence.
It is essential that the correct advice is sought before taking any steps to initiate divorce proceedings or respond to any that have commenced.
The choice of country may depend on who issues first, what are the timescales and procedures for divorce in a particular country and which forum would be most advantageous and to whom.
Always take advice before taking any steps.
Getting financial advice following a divorce in another country
The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision may have, or have not, been already made. This is under part III of the Matrimonial and Family Proceedings Act 1984.
In order to bring a claim in England, the primary qualification is the parties must have sufficient connection to England, such as follows:
- a) Either is domiciled in England and Wales at the time of the foreign divorce or at the time of the application; or
- b) Either has been habitually resident in England and Wales for 12 months at the time of the foreign divorce or at the time of the application; or
- c) One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house)
The purpose of the legislation is not to have a second go at a settlement but should be thought of as a method to consider financial matters, had they been dealt with in this country.
In particular, proceedings can also usefully be used where the law of the country where the divorce occurred does not allow orders in certain areas. For example, some countries have no concept of pension sharing orders or are not able to deal with foreign owned property.