Parental Child Abduction: What you need to know

As family law specialists, our solicitors come across cases of alleged child abduction on a relatively frequent basis.

One of the things that makes parental child abduction stand out against other forms of child abduction, is that it’s not unusual for the parent abducting the child to be completely unaware that they have committed any sort of offence.

What is parental child abduction?

Parental child abduction occurs when one parent takes their child away from their habitual place of residence, without either a court order or permission from those who have parental responsibility.

This means that if you take your child abroad without getting permission to do so from everyone who has parental responsibility for the child (or have a court order granting you permission to do so), this may constitute parental child abduction.

Back in 2010, the Conservative and Liberal Democrat coalition government published a document in which they said that in many cases of international parental child abduction, parents pretended that they were going on holiday with their child to their country of origin and then failed to return to the UK.

In research commissioned around the same time by the British Foreign Commonwealth Office, a third of people didn’t know that if they took their child abroad without getting permission from the other parent, this could be seen as child abduction by UK law.

Parental child abduction normally happens because of separation or divorce

Parental child abduction is usually carried out by the parent who has not been given custody of a child after a relationship has broken down. In order for a child to be relocated to a different country, each person with parental responsibility has to give their permission for the child to go. It is when this permission is not obtained and a parent takes the child abroad anyway, that parental child abduction may take place.

If one parent wants to relocate their child to a different country, they can attempt to obtain a court order to do so without all parties with parental responsibility having to give permission for the move to happen.

This is an area of law where there is often little or no compromise, as a child either moves abroad or stays in the UK. It is highly recommended to seek independent legal advice at an early stage as many cases do end up in court.

Who has parental responsibility?

The mother who has given birth to the child automatically has parental responsibility.

Fathers may have parental responsibility in a number of different circumstances. If the father of the child is married to the child’s mother, he will usually have parental responsibility. Additionally, if the father is named on the birth certificate (after a certain date), he may also be deemed to have parental responsibility.

In some circumstances, it may be possible to get parental responsibility for a child if you don’t have it already, as long as you are connected to the child in some way. It may be possible to get parental responsibility by obtaining agreement from the mother of the child.

Alternatively, could be possible to apply for a court order to get parental responsibility for a child. To find out more about parental responsibility in your particular circumstances, you could speak to our expert family law solicitors.

Where is a child’s habitual place of residence?

A child’s habitual place of residence is usually quite simple to determine. Courts may look at issues such as where a child goes to school and where they are most integrated.

Things can become more complex if a child is moving around a lot. If you are concerned about where your child may be seen as habitually resident, it is highly recommended that you talk to a solicitor who specialises in this area of the law.

What does the law say about child abduction?

The Child Abduction Act 1984 states that subject to subsections (5) and (8), “a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.”

The Child Abduction Act 1984 goes in to say that a person is “connected with” a child for these purposes if:

(a) he is a parent of the child; or

(b) in the case of a child whose parents were not married to each other at the time of his birth, there are reasonable grounds for believing that he is the father of the child; or

(c) he is a guardian of the child; or

(d)he is a special guardian of the child; or

(e) he is a person named in a child arrangements order as a person with whom the child is to live; or

(f) he has custody of the child.

Within the Child Abduction Act 1984, “appropriate consent” means:

(a) the consent of each of the following—

(i) The child’s mother;

(ii) the child’s father, if he has parental responsibility for him;

(iii) any guardian of the child;

(iv) any special guardian of the child;

(v) any person named in a child arrangements order as a person with whom the child is to live;

(vi) any person who has custody of the child; or

(b) the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or

(c) if any person has custody of the child, the leave of the court which awarded custody to him.

The Child Abduction Act 1984 goes on to say that a person does not commit an offence under this section, if they take the child outside of the UK without obtaining the appropriate consent and if they are named in the child arrangements order as the person with whom the child should live and the child is taken out of the UK for less than one month (more on this below) or the person “is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months.”

However, this last bit doesn’t apply if the person is taking the child out of the UK in breach of a court order.

The case of the former BBC children’s television presenter 

Back in September 2016, the press reported on a court case involving former CBBC presenter Katy Ashworth and her ex-partner Ben Alcott. This case brought a spotlight onto the law regarding parental child abduction. In this case, Ashworth and Alcott had been in a long-distance relationship, with Ashworth living in the UK (with their child) and Alcott living in Australia.

Ashworth had reportedly gone out to Australia (with their child) to join Alcott in the spring of 2016. According to the deputy high court judge, Alex Verdan, reportedly responsible for analysing the evidence in the case, Ashworth had said that this was a “trial attempt” to see if their relationship would work, whereas Alcott had seen it as a “permanent move”.

The judge also said that Ashworth had always been the child’s primary carer. Ashworth reportedly stayed in Alcott’s house for only three nights, before returning to the UK a short time later, because she had discovered that Alcott may have been having relationships with other women.

According to the reports on the case, Alcott said that the move to Australia was intended to be permanent and that as the child was habitually resident in Australia before returning to England, Ashworth should not have taken the child back with her to the UK. Ashworth reportedly said that this was not the case and the child never became habitually resident in Australia.

Verdan concluded that the child had never been habitually resident in Australia and reportedly said that the mother would never have moved, if she had known the true state of affairs.

In this case, the judge decided that it was not child abduction as Ashworth had just been taking the child back to where the child was habitually resident.

What can I do if I think my child has been abducted?

If you are concerned that your child has been abducted by their other parent and taken abroad (or may be about to be abducted) it is highly recommended that you seek advice from our expert solicitors soon as possible. It may be possible to get a court order to stop your child from being taken abroad, if they haven’t already left. Depending on the circumstances, you may also need to contact the police. The police may then be able to get a “Port Alert” issued to try and prevent your child from being taken abroad. If you think that your child has already left the country with the other parent, you should report this to the police. It may also be useful to contact reunite, a charity which specialises in parental child abduction, for information and advice.

I’ve heard someone mention the Hague Convention – what is it? 

The Hague Convention is an agreement made between a number of different countries to help ensure that abducted children are returned to where they habitually live. It “ensures that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

What if my child has been taken to a country that is not covered by the Hague Convention? 

If the country your child has been taken to is not part of the Hague Convention, you may find that there aren’t any international systems in place that could help you to get your child back to the UK. This may mean that you could have to ask a court abroad for help in getting your child back.

It is highly recommended that you contact us if your child has been abducted (or you think that your child may be about to be abducted), whether or not the country your child has been taken to is part of the Hague Convention.

What about if I want to take my child abroad on holiday?

If you have a child arrangements order that says that your child should live with you, you may be able to take your child abroad on holiday, for a maximum of 28 days, without getting permission from those who also have parental responsibility for the child (unless there is a court order saying to the contrary).

If you don’t have any court orders in place that say where your child should live, you will need to seek permission from anyone else with parental responsibility before you take your child overseas.

How can I show that I have permission to take my child abroad?

According to the Government website, a letter from anyone else who has parental responsibility for the child you want to take abroad is normally enough.

Applying to court for permission

If you are unable to get permission to take your child abroad from others with parental responsibility, you may need to apply to a court for permission. In order to do this, you will need to provide the court with details of your holiday, such as when you are going and when you expect to return.

Important to seek legal advice before taking a child abroad

Many people don’t realise that by taking their child out of the UK without the appropriate permissions, they could be committing a criminal offence. For anyone wanting to take their child abroad, even if it is just for a holiday, it is a good idea to seek legal advice to ensure that you are not breaking any laws.

If you think that the other parent is going to take your child abroad without your permission, then it is extremely important to seek expert legal advice from solicitors, such as Austin Kemp, as soon as possible.

A good solicitor should be able advise you on your options and act quickly to put any necessary stops in place.

How can our expert family law solicitors help you?

Our expert family law solicitors can help you with a range of legal issues relating to child abduction, including:

• Prenuptial agreements
• Cohabitation agreements
• Post civil partnership agreements
• Divorce
• Domestic violence and harassment
• Child maintenance
• Child contact arrangements
• Divorce financial provisions

Contact our expert family law solicitors

For more information call our expert family law solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert family law solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in:

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Please contact us for more details.