27 September 2023
I have been accused of abducting my own child and served with Court papers, what do I do?
How can I have abducted my own child?
Parental abduction is where a child has been removed from one country without the permission of the other parent or permission of the Court; or where a child has been retained in another country beyond the agreed period, without the permission of the other parent. This is called a wrongful removal or a wrongful retention.
In England, child abduction is a criminal offence which can carry a custodial sentence if convicted.
I have been served with child abduction proceedings – what are they are what do I do next?
If you have been served with Hague Convention proceedings, it is being alleged that you have either ‘wrongfully removed’ your child or ‘wrongfully retained’ them.
The 1980 Hague Convention aims to secure the return of a child to the country where they were wrongfully removed from. The UK is a signatory to the 1980 Hague Convention. There are currently 103 countries who are signatories to the 1980 Hague Convention, meaning that if a child is removed to, or retained within any of these countries that are signatories, these countries will work with each other to secure the safe return of the child. Essentially, the aim is to return the child to the country they were moved from, to allow the Courts in that country to then deal with welfare issues such as residence and contact and what the longer arrangements for the child should be.
If a parent wishes to make an application under the 1980 Hague Convention, an application is made via the International Child Abduction and Contact Unit (ICACU) and proceedings are issued via an application C67 and a statement in support. The parent applying will be seeking a Return Order providing for the child to be returned to their original country, or country of habitual residence.
These types of proceedings are summary in nature and are not welfare based. They are dealt with very differently to usual residence and contact cases. The law applied is different and often complex with the focus being on jurisdictional issues rather than what may be in the child’s best interests.
It is possible to defend cases such as these and resist a Return Order being made. However, there are limited defences available to these types of proceedings and the threshold is usually very high. Below is a very basic summary of defences available. Even if some of the defences below are established, it is still up to the Judge to exercise discretion to decide whether or not to order a return of the child.
Habitual residence (being able to show that the child is no longer habitually resident in the country where the return is being sought to) – habitual residence is much more detailed and complex than where a child is simply living.
Rights of custody (being able to show that the parent seeking the return did not have the relevant rights of custody at the time of removal/retention and was not exercising those rights).
Consent/Acquiescence – (being able to show that the other parent clearly consented to the removal or retention or has acquiesced to it);
Children’s objections –(being able to show that the child is clearly objecting to a return to the country in question and has attained an age and degree of maturity at which it is appropriate to take account of his/her views) Usually the child will be independently interviewed by Cafcass High Court Team if this defence is raised.
Grave risk of harm or intolerable situation – (being able to show that there is a really grave risk to the child upon a return and that the country in question cannot adequately protect)
Settlement – if the child has already been in the new country for 12 months by the time the application is issued, it may be possible to argue that the child is now settled here.
Hague convention proceedings progress quickly with the Court usually directing a limited time to prepare evidence and set out any defence. Due to the summary nature of proceedings, the Court will move the matter towards a Final Hearing very quickly.
What else do I need to think about?
There are lots of things to consider if you are served with Hague Convention proceedings such as: –
- If you wish to oppose a Return Order being made, do you have any defences available to you;
- Is this a case where cross-border mediation could be considered?
- Could a voluntary return be contemplated?;
- If the Court ordered the return of the child, how could a return be made safe and what protective measures need to be in place?; Would they be followed?;
- How would a Return Order impact on any welfare proceedings in the original country – often proceedings will take place there following the return of the child, if that is ordered.
- If the English court rules that there was a wrongful removal or retention, could there be any criminal liability/risk of prosecution in the original country?
- If my child is returned, what will be the practical arrangements surrounding that?
If you are served with Hague Convention proceedings, it is crucial to get specialist advice quickly and engage with the process. There can often be significant amount of work that needs to be undertaken to properly prepare your case and this may also involve the need to translate documents obtain documents from abroad.
Can I get legal aid?
Legal aid is available for Respondent parents in child abduction cases but this is means and merits tested. This means that you will need to be financially eligible and will need to show that you have an arguable case. Legal aid can be granted on an emergency basis if you are eligible, given the nature and urgency of these proceedings.
Child Abduction Law is a very niche and specialist area of family law. LDJ solicitors are one of only a small number of firms within England & Wales who are listed on ICACU specialist child abduction panel.
Gemma Kelsey holds an accreditation in child abduction law and has been ranked and recognised in both Legal 500 and Chambers & Partners for her work in international children law. Gemma has over 15 years experience in representing parents, both applicants and respondents in this field and working with a number of specialist Hague Convention lawyers across different countries.
This blog only deals in summary with cases involving Hague Convention countries. There are different processes and laws relating to when a child is removed from a Non-Hague Convention country. This is also something we can advise and assist you with.
If you have been served with Hague Convention proceedings or would like advice surrounding any of the issues raised in this blog, please contact our Partner & Head of Children and Domestic Abuse Gemma Kelsey on 07731 373 468 or alternatively email on email@example.com