Welcome to the first of three articles looking at various aspects of Child Abduction. This area of safeguarding is based principally around the legislation contained within the Child Abduction Act 1984 and the Children Act 1989. For us these acts translate into to four key categories:
- Abduction of a child by a person not connected to the child – Section 2 Child Abduction Act.
- Taking, keeping or encouraging a child to run away from lawful care or emergency or police protection – Section 49 Children’s Act 1989.
- Child Abduction Warning Notices (CAWNs).
- Abduction of a child by a person connected to the child (commonly referred to as parental child abduction) – Section 1 Child Abduction Act.
In this article we concentrate on the first two areas – Section 2 & Section 49, which are relevant to those who are charged with safeguarding children on a daily basis, particularly professionals who are involved with missing and/or exploited children. These two offences are commonly associated with non-parental child abduction, rather than the offence of parental child abduction covered under Section 1 of the Child Abduction Act. In other words, those people who for their own reasons, takes or harbours a child who they have limited or no association with.
Abduction of a child by a person not connected to the child – Section 2 Child Abduction Act.
What is Section 2 Child Abduction?
Section 2 deals with people who take or detain a child who are not connected to that child.
A person commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen:
- so as to remove him from the lawful control of any person having lawful control of the chil; or
- so as to keep him out of the lawful control of any person entitled to lawful control of the child.
Is this not Kidnapping?
No! The Common Law offence of Kidnapping may at first seem similar but is in fact very different. Kidnapping is the ‘taking or carrying away of one person by another, by force or fraud, without the consent of the person so taken or carried away’. Kidnap always involves the false imprisonment of the person taken or carried away. False imprisonment is ‘the unlawful and total restraint of the personal liberty of another’. Both Kidnap and False imprisonment are indictable only offences so can only be tried in the Crown Court. Both carry a maximum sentence of life imprisonment.
What is the idea behind Section 2 and who is it for?
Some individuals permit young people to stay at their homes without making any attempt to inform the young person’s parent or carer. Some go as far as encouraging the young person to go missing or stay away from the parent/carer, whilst others actively obstruct attempts by police or social care to locate the child. This is often described as – harbouring a child. Many of these people do not mean the young people any harm and commit the offence without realising they are doing so, purely because they are irresponsible and have a dislike and distrust of authority. Most are not particularly good role models and often the young people are exposed to alcohol and drugs. Then there are the predators, those that target, groom and harbour children with the intent to commit criminal offences. Grooming will often involve the offender inducing, assisting and inciting the child to run away or stay away from their parent or carer.
Who is connected to the child and who is not?
A person is connected to a child if they are:
- the parent of the child; or
- the father – in the case of a child whose parents were not married to each other at the time of the birth and there are reasonable grounds for believing that he is the father of the child;
- the guardian of the child;
- a person in whose favour a Child Arrangements Order is in force with respect to the child;
- or a person who has custody of the child.
So, anyone who does not fall into the category is not connected it the child and therefore may commit the offence.
What are the penalties for those who commit this offence?
Section 2 is an ‘either way’ offence (summary and indictable), meaning it can be tried in both the Magistrate and Crown Court. If heard in a Magistrates Court, a person found guilty of this offence is liable to a maximum sentence of 6 months imprisonment and/or a fine not exceeding £5000. If found guilty in a Crown Court the maximum sentence is a term of imprisonment not exceeding seven years.
What if an adult generally believes that taking a child in is the right thing to do?
There are many occasions when an adult will in all good faith, take a child into their address. An example of this is where a missing child goes to their friend’s house and the parent of the friend allows the missing child to stay the night. In these circumstances, it is often better for the child to be at an address where they are safe, rather than walking the streets. Much of the law is about intent and if the harbourer doesn’t have any malicious intent then generally it would preferable to speak to the adult, explaining the law and seeking their cooperation. In this particular scenario if the adult continuously took in the child and made no attempt to notify the carer or the authorities then they would be harbouring.
Taking, keeping or encouraging a child to run away from lawful care or Emergency or Police protection – Section 49 Children’s Act 1989.
What is Section 49 Children’s Act 1989?
Section 49 deals with young people who are subject to either a Care Order, an Emergency Protection Order (EPO) or who are in Police Protection.
A person commits an offence if, knowingly and without lawful authority or reasonable excuse, he/she:
- takes a child to whom this section applies away from the responsible person;
- keeps such a child away from the responsible person; or
- induces, assists, or incites such a child to run away or stay away from the responsible person.
Unlike Section 2, this applies to a young person who is 16 years or over. To charge someone with this offence, the police need to prove that the offender knew:
- that the child is subject to a care order, an emergency protection order or was in police protection;
- that the offender knew that the responsible person had not given their permission for the child to stay with the offender.
Who is a responsible person?
A ‘responsible person’ is any person who for the time being has care of the child by virtue of a care order, an emergency protection order, or the police (section 46 -police protection).
What is an Emergency Protection Order?
Emergency Protection Orders (EPO) are covered under Section 44 Children Act 1989. Where a child is in immediate danger, an EPO is a short-term order to ensure the child’s safety. It lasts a maximum of 8 days but can be extended for a further 7 days on application. The order grants the applicant parental responsibility, but only allows them to take such action which is reasonably required to safeguard the welfare of the child. This can include accommodating the child and preventing them from returning to their parent’s care or allowing the child to remain where they are, if it is safe.
What is Police Protection?
Section 46 Children Act 1989 gives police an emergency the power to remove a child to a place of safety or prevent the child’s removal from a place of safety. For a fuller explanation please see our article – ‘Police Protection – a practical guide’.
What powers are there to recover the child in these circumstances?
Where a child has been abducted, run away or is staying away in the circumstances described under S49, then professionals must consider applying for a Recovery Order.
What are Recovery Orders?
Recovery Orders are covered by Section 50 Children’s Act 1989 and deal with the recovery of a child who is under a Care Order (Interim or Full), an Emergency Protection Order or under Police Protection. A court can issue a Recovery Order where it there is reason to believe that a child:
- has been unlawfully taken away or is being unlawfully kept away from the responsible person;
- has run away or is staying away from the responsible person; or
- is missing.
The order directs any person to produce the child on request to any authorised person, if they are in a position to do so. It also authorises the removal of the child by any authorised person and requires any person who has information as to the child’s whereabouts to disclose that information, if asked to do so, to a constable or an officer of the court. A constable can to enter any premises specified in the order and search for the child using reasonable force if necessary. It is an offence to intentionally obstruct an authorised person exercising the power of an order.
A recovery order is not available in respect of a Section 20 accommodated children.
What are the penalties for those who commit this offence?
Section 49 is a summary only offence. This means that it can only be tried in a Magistrates Court and has a maximum sentence of 6 months imprisonment or a fine not exceeding £5000.
Section 32 Children & Young People Act 1969
There is an additional offence of removing a child from a place of safety under Section 32(3) Children & Young People Act 1969. This makes it illegal to compel, persuade, incite or assist a child to become or continue to be absent from a place of safety or local authority accommodation in which he is required to live under or to which he has been remanded by the criminal courts. Like Section 49, this is also a summary only offence, meaning that it can only be tried in a Magistrates Court and has a maximum sentence of 6 months imprisonment or a fine not exceeding £5000.
In the next article on this topic, we look at Child Abduction Warning Notices. Thanks for reading.
Please note: Whilst we have used the term ‘non-parental’, there are occasions when a parent will use a third party to assist in the abduction of their children. In these circumstances that third party may well commit a Section 2 offence, whilst the parent will commit the Section 1.