Child
abduction law
What
the law says about child abduction
In England,
Wales, Scotland and Northern Ireland, child abduction involves both
the civil and criminal law. However, once a child has been removed from
the United Kingdom, parental abduction is usually treated as a civil
matter.
The Child Abduction
and Custody Act 1985 and Part VI of the Family Proceedings Rules 1991
give effect to the Hague and European Conventions in English law, the
Legal Aid Act 1988 and the Civil Legal Aid (General) Regulations 1989
provide financial support for litigants, the Family Law Act 1986 has
provisions for making orders for the protection of children and the
Child Abduction Act 1984 makes it a criminal offence for a person connected
with a child to take or send the child out of the United Kingdom without
the appropriate consent. A parent can also be charged with the common
law offence of kidnapping.
The Revised
Brussels II Regulation is effective without the need for domestic legislation
and the court rules have been amended to accommodate the regulation.
Civil
Law
The law in England and Wales is primarily governed by the Children Act
1989 (the Children Act), which came into force in 1991. This Act created
the new concept of parental responsibility, meaning the duties, rights
and authority which a parent has in respect of their child.
When a child's
parents are married, they both have parental responsibility. When the
father is not married to the mother, he does not have parental responsibility
simply by being the father, but he may acquire it either by court order
or by formal agreement with the mother (parental responsibility agreement).
Since 1 December 2003 if both parents are present when the birth of
the child is registered, an unmarried father will automatically acquire
parental responsibility for his child. See the Births and Deaths Registration
Act 1953 and Statutory Instrument 2003 No.3079(C.117) Children and Young
Persons in England and Wales which, under paragraph 2(2) brings into
force section 141 of the Adoption of Children Act 2002.
The Children
Act emphasises that parents have continuing responsibility for their
children and generally should have continued involvement in the children's
upbringing even after separation. The Act provides a flexible system
of orders intended to settle particular matters. Each parent is bound
to obey any orders made under the Children Act. Orders made under the
Children Act are based on the principle that the best interests of the
child is the paramount consideration.
The orders available
to the courts include residence orders, which settle with whom the child
is to live, and contact orders, which deal with any form of contact
which the child is to have with the other parent and significant people
such as grandparents or step-parents. Orders expressed in terms of custody
and access continue to have effect unless a court discharges and replaces
them with a residence or contact order or the child turns 18.
The law in Scotland
is governed by the Children (Scotland) Act 1995, and is similar to the
law in England and Wales. Further information regarding Scottish law
and a separate booklet can be obtained from the Scottish
Executive Justice Department.
The law in Northern
Ireland is primarily governed by the Children (Northern Ireland) Order
1995 and is also very similar to that in England and Wales. Further
information about Northern Irish law can be obtained from the Northern
Ireland Court Service. Unless the court orders otherwise, a parent
with a residence order may take a child out of the United Kingdom for
a period of up to 28 days without a prior application to the court or
the consent of the other parent.
Failure or refusal
to return the child to the United Kingdom once this 28 day period has
expired will constitute a wrongful retention of the child for the purposes
of the Hague Convention and the Revised Brussels II Regulation.
In cases where
abduction is feared and there is evidence to support that fear, the
court may make a prohibited steps order to restrain either or both parents,
from taking the child abroad at all.
Criminal
Law
Under the
Child Abduction Act of 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. A parent who has the right
to have contact with or access to a child will usually also have parental
responsibility. The term 'connected with a child' is defined in Section
2 of the Child Abduction Act 1984 and includes the parents or guardians
of a child and anyone who has parental responsibility for the child.
No offence is committed, however, where a child is the subject of a
custody/residence order, if the court which made the order has consented
to the child being removed from the country.
The same provisions
apply in Scotland and Northern Ireland. The relevant Acts are the Child
Abduction Act 1984 (Scotland) and the Child Abduction (Northern Ireland)
Act 1985.
Summary
of statutes and regulations
Child Abduction
and Custody Act 1985
Child abduction Act 1984
Family Law Act 1986
Legal Aid Act 1988 Part IV
Family Proceedings Rules 1991 Part VI
Civil Legal Aid (General) Regulations 1989 Regulations 13 & 14
Council Regulation (EU) 2201/2003 (Revised Brussels II)
Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2005
Family Proceedings (Amendment) Rules 2005
European Communities (Jurisdiction and Judgements in Matrimonial and
Parental Responsibility Matters) Regulations 2004
