In the final part of our three articles covering child abduction, we take a look at parental child abduction. In the previous two posts we covered aspects of child abduction that mainly relate to those children and young people who go missing or are at risk of exploitation - Non-parental abduction and Child Abduction Warning Notices.
Generally, these are the main areas of child abduction that most safeguarding professionals will deal with. It will be rare for practitioners to have much to do with parental abduction. However, it is an area that cannot be overlooked. Any attempt by a parent to remove a child from the UK without permission, will undoubtedly raise some safeguarding concerns. Therefore, professionals should have some insight into exactly what parental child abduction involves. We hope you find this article useful.
Each year in the UK, many children are subject to parental child abduction. This occurs when a parent takes the child and removes them from the UK without the permission of the parent/guardian who has parental responsibility. It can also occur where the child is removed in contravention of a court order. Often the trigger for abduction is when parents separate or divorce in acrimonious circumstances, or where they are in dispute on how the child should be brought up e.g. what religion a child should adopt. In the last few years the incidents of parental abduction have risen sharply, mainly due to an increase in cross-cultural relationships and marriages.
Professionals are likely to become involved in these disputes where a parent seeks help or raises concerns about the welfare of the child. Where a child has already been removed much of the advice and support you give, will be to refer the parent on to the appropriate organisations so they can seek help (see our support section below). Nevertheless, it is important for all professionals in safeguarding roles to be aware of the law and procedures around parental abduction, particularly as you may become involved in bitter family feuds, which might lead to allegations of child neglect/abuse by one party against the other.
It is a criminal offence under Section 1 Child Abduction Act 1984, for a person connected with a child under the age of 16, to take or send that child out of the UK without the appropriate consent. Where orders are in place preventing the removal of the child, the person may also be in contempt of court.
Who can give the appropriate consent?
Dependent on individual circumstance, any of the following could give appropriate consent:
- mother of the child
- father of the child if he has parental responsibility
- guardian of the child
- special guardian of the child
- holder of a residence order (in place before 22.04.14) for the child
- holder of residence under a Child Arrangements Order for the child
- local authority if the child is in care
- any person who has custody or care and control of the child by order of a UK court or the court, where the child is a ward of the court
- the family proceedings court where the child has been detained in a place of safety following arrest or remanded to local authority accommodation
Who can have Parental Responsibility (PR)?
Parental responsibility means all the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his/her property.
Who normally has PR:
- the birth mother of a child will always have parental responsibility unless the child is adopted
- the father where he and the mother are married to each other at the time of the birth
- the father where he is not married to the mother at the time of the birth but is named on the birth certificate when registered (post 1st December 2003)
- a father who marries the mother
- the father where he and the mother have agreed and drawn up a parental responsibility agreement
- the father where the court makes a Child Arrangement Order in the father’s favour, after the parents could not agree on the father having parental responsibility
- the husband or civil partner of the mother where they acquire parental responsibility by entering into an agreement, or if they obtain a child arrangement order for residence
- a Local Authority where a Care Order is in place. Although the LA will have parental responsibility there will still be some decisions which will require others who have PR to agree upon, e.g. what religion a child should be brought up in, allowing the child to live outside the UK for more than 28 days.
Yes, there are certain situations where a person won’t be acting unlawfully if they take or send a child out of the UK. These are:
- where a person has a Child Arrangements Order (CAO) in place stating that the child lives with them, then they can take or send the child out of the UK for up to 28 days without the appropriate consent (unless there is a court order in place preventing this);
- where a parent has a Residence Order in place (prior to the introduction of CAO’s on 22nd April 2014) then they can take or send the child out of the UK for up to 28 days without the appropriate consent (unless there is a court order in place preventing this);
- where a person has a Special Guardianship Order for a child then they can take or send the child out of the UK for up 3 months without the appropriate consent;
- a mother can take a child out of the UK without a father’s permission if the father does not have parental responsibility;
In the case of a Child Arrangement or Residence Order, if the parent intends to take the child out of the UK for longer than 28 days, then they will need the appropriate consent.
If the two people (sometimes more) with parental responsibility are unable to come to an agreement about taking the child out of the UK, then the person wishing to take the child will have to seek permission from the court to do so. To remove the child from the UK without the consent will constitute an offence.
The law around consent is pretty loose. A person wanting to take the child out of the UK, only has to obtain oral consent from the other person with parental responsibility. Ideally the consent should be in a written format but there is nothing to prevent both parties agreeing verbally. This however, may often lead to the inevitable – a dispute over whether consent was or wasn’t provided. This is different where a Residence or Child Arrangement order is in place, in which case, written consent from everyone with parental responsibility will be required.
There is nothing to prevent one parent moving (with the child) to any area within England and Wales. The parent does not need the consent of anyone else with parental responsibility to do this. This often causes a dispute with the other parent. If this occurs, then the other parent should be advised to seek legal advice about applying for a Prohibited Steps Order or to become the resident parent under a Child Arrangements Order.
Where a parent takes the child to Northern Ireland or Scotland, the parent left behind should be advised to seek legal advice as any orders obtained in the Courts of England & Wales (e.g. Child Arrangement Order) will need to be registered in the courts of those countries. This is to ensure that they then become legally enforceable. If the parent has no order, then they can apply to for court orders relevant to the country. It is a criminal offence to remove a child to the Channel Islands or Isle of Man without the appropriate consent.
There are three defences to Section 1. These are:
- where the parent reasonably believed that the other parent has consented or would consent if he/she was aware of all the circumstances
- where the parent had taken all reasonable steps to communicate to the other parent the intention to remove the child, but had been unable to do so
- where the other parent whose consent is required had unreasonably refused to give that consent. However, this defence is not available if the person who refused consent holds a Residence Order, a Child Arrangements Order or a Special Guardianship Order or if there is an order from the court in place specifically preventing removal.
A person found guilty of the Section 1 Child Abduction offence in a Magistrates Court will be liable to a term of imprisonment not exceeding six months. A conviction in the Crown Court would make the convicted person liable to a term of imprisonment not exceeding seven years. The court can also issue a fine. Because of the often-complex nature of these cases, the consent of the Director of Public Prosecutions is required before a person can be charged with this offence.
The welfare and best interest of the child are the principal considerations when the court makes a decision as to whether a child can go abroad. They will deliberate over a number of key issues including:
- the child’s physical and emotional needs
- the impact of the proposed changes on the child
- whether the child’s needs will be met
- is the parent able to provide the necessary care?
Where the child is of a sufficient age and understanding, the court will also ascertain what their wishes are.
The court has the option of granting several orders. These include:
Location Order – this directs Tipstaff* to take steps to locate a child and when the child has been found, to remove the passports of the child and any adult responsible for having removed the child from where they should be. There is NO power to remove the child and they must be left where they are.
This order is all about serving an order on the named person(s), so they are aware that the courts are involved and are now preventing the potential removal of the child from the UK, by removing the passports, travel documents and tickets of the child and any named adults. The officer serving the notice should seize the passport/documents and instruct the named person on the order, or person served with it, that they are not to remove the child from the place where they have been found, except for day to day routine e.g. school. Once served the person is then under a legal duty to disclose any information that could lead to the identification of the child's whereabouts. Failure to comply with the is order will lead to arrest of the named person, or any person who is served with it and whom are in a position to comply.
* the powers conferred on Tipstaff will almost certainly be executed by police who will act as an agent
What are Tipstaff? - Tipstaff is an office of the High Court and the enforcement officer for all orders made in that Court. There is only one Tipstaff, but the holder may appoint three assistants. Tipstaff can call on any constable, bailiff or member of the public to assist them in carrying out their duties. Orders made in the High Court in relation to child abduction cases are addressed to the Tipstaff, who has the responsibility of executing the order or in the case of a child who is a ward of court, ensuring the child is delivered to the location specified by the court.
Collection Order – provides a power to Tipstaff (devolved to police) to remove a child from the person holding him/her and provides direction as to who the child should be delivered to when located i.e. a nominated person/social services etc. All passports/travel documents relating to the child, any named adult, the person served with the order or a person who is able to comply, must also be seized. Police will normally remove the child and take them to a police station (although this is far from an ideal place) and await further instruction from the Tipstaff as to where the child should be delivered to or who will collect the child. A power of arrest for people who fail to comply will be contained within the order.
Passport Seizure Order – provides a power to seize passports pertaining to the child and persons named on the order to prevent the child’s removal. A power of arrest for people who fail to comply will be contained within the order. Tipstaff will direct the police officer seizing the passport(s) as to what should be done with passport(s).
Prohibited Steps Order, Child Arrangement Order and Specific Issue Order – are all orders available to the court. Please see our article - ‘Care Orders – a simple guide’, for more information on these orders.
Wardship – this is a summons issued by the High Court (or Judge sitting as a High Court Judge), which immediately makes a child an automatic Ward of Court. Any person with an interest in the child (normally the parent or guardian) may instigate wardship proceedings as can a local authority with the court's permission. When a child is made a ward, the court takes over responsibility for the child and shares parental responsibility with those who already have it. The court becomes responsible for important decisions in the child’s life and no significant decisions can be taken without the court’s consent. Wardship is not widely used and cannot be used as a ‘back door’ way of taking a child into care and circumnavigating the Children’s Act.
International parental child abduction is a complex area and therefore parents will require specialist help. Most safeguarding professionals will have limited knowledge around this topic and therefore should focus on referring the parent or family to the specific organisations that can assist them. Where a parent is unsure on their legal position in relation to the child, then they should be advised to consider instructing a suitably qualified family lawyer without delay. Where a child has been abducted by the other parent or there is a fear of future abduction, then there are four principle organisations that will assist a parent. These are the charity ‘Reunite’, the Foreign and Commonwealth Office (FCO), the International Child Abduction and Contact Unit: (ICACU) and the Police.
International Child Abduction and Contact Unit (ICACU)?
The ICACU is an administrative unit which is the central authority for England and Wales. It deals with a number of international treaties. It is commonly called the ‘the central authority’ and is the contact point between the applicant in the UK and the relevant authority or courts in the country where the child has been taken. It specifically deals with the following treaties/regulations:
- Hague Convention 1980 - is an agreement between various countries which aims to ensure the return of an abducted child to the country where he or she normally lives, so that issues of residence (custody) and contact (access) can be decided by the courts of that country. There are currently 82 members signed up to The Hague Convention.
- Brussels IIa (Council Regulation (EC) 2003 – a European regulation which applies to all member states of the EU (not Denmark) and deals with rules, regulations and enforcement of orders in child abduction cases.
- 1980 European Convention (the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children)
- Hague Convention 1996 – a convention which supports the Brussels IIa.
The ICACU will attempt to assist the parent by making an application on behalf of the parent under The Hague Convention. The ICACU are unable to help parents where the abduction has occurred outside the countries that have not signed up to the above conventions.
Scotland and Northern Ireland have their own central authorities whilst there is a separate central authority in Wales. Please see our support section below.
Foreign and Commonwealth Office (FCO)
The FCO is the lead government department on parental child abductions involving British nationals, where the child has been taken to countries that have not signed up to the 1980 Hague Convention. The FCO can offer assistance to a parent which may include:
- offer travel advice and help with finding local accommodation
- a consular visit to the child (if the other parent agrees)
- lists of overseas English-speaking lawyers
- liaison with local authorities overseas and where appropriate make representations on the parent’s behalf
- advise about translation services
The FCO will not get involved in any legal proceedings, pay any bills incurred by the parent or become involved in any illegal attempts to recover the child.
The principle charity providing advice and support to parents and families whose children have been, or might be, abducted overseas. Reunite is sanctioned by the FCO. Their services include:
- prevention advice
- advice Line
- a Child Abduction Prevention Pack
- lawyer listing - a list of lawyers specialising in family law
- guidance on obtaining Legal Aid
Reunite Child Prevention Pack – As safeguarding professionals we recommend that you download and have a look at this pack. Whilst it is primarily aimed at parents, it is an easy reference guide and may benefit professionals as an aide memoir. It offers:
- practical guidance on what to do if a parent believes that their child may be abducted
- in-depth advice on passports and birth certificates relating to children
- what organisations to tell (for professionals this will give insight as to who should be involved in potential multi-agency meetings)
- practical information if a child has been abducted
- contact details for the departments/organisations mentioned above
If a parent informs you that their child has been abducted overseas or they fear that is going to happen, then you should advise them to report it to the police immediately. It is likely that the parent who has taken the child has committed a criminal offence in the UK and therefore police will need to investigate the circumstances. If the child has already gone then police do not have any powers to instigate the recovery of the child. However, they may be able to make certain enquiries through Interpol e.g. establish the whereabouts of the child, instigate a welfare check with the local law enforcement agency. In reality once the child has left the UK then the principle agency will become either the ICACU or FCO with support from the police and Reunite.
Where a child has not yet left the UK, police may be able to prevent the child being taken out of the country. They should conduct a full investigation which could also include an ‘All Ports Warning’. This is a warning notice sent to all UK points alerting the ports of the potential departure of the child and abductor. The criteria for issuing a Port Alert is that police must be satisfied that the threat of abduction is ‘real and imminent’. This means that there must be supporting information that the abductor is likely to remove the child within the next 24 to 48 hours? Supporting information can come from a number of factors e.g. evidence that tickets have been purchased, child’s passport is missing, the abductor has strong links to family abroad or the potential abductor has made recent threats to remove the child.
Where the Court has issued a Location or Collection Order, this will automatically contain a port alert (instruction to police to instigate the alert). Professionals should be aware that they should not give the parent any guarantee that an ‘All Ports Warning’ will ensure the child can’t be removed. There are many ports within the UK and not everyone that passes through a port exiting the UK is checked. The existence of a warning does not guarantee that a child will not be removed from the UK. The warning will last initially for 28 days.
International Child Abduction and Contact Unit (ICACU)
Office of the Official Solicitor
London WC2B 6EX
Telephone: 0203 681 2608
Email for new applications and general enquiries: [email protected]
Foreign and Commonwealth Office
King Charles Street
London SW1A 2AH
Telephone: 020 7270 1500
Email: [email protected]
St Andrews House
Edinburgh EH1 3DG
Tel: 0131 244 4827 or 0131 244 4826/7
PO Box 7124
Leicester LE1 7XX
Advice Line: 0166 2556 234
Telephone: 0116 2555 345
Email: [email protected]
Central Business Unit Northern Ireland Courts and
4th Floor Laganside House
23-27 Oxford Street Belfast BT1 3LA
Tel: 028 9072 8808 Fax: 028 9072 8945
Central Authority for Wales
Welsh Government Social Services and Integration
Tel.: +44 (29) 2082 1518
Email: [email protected]
89 Ecceleston Square
London SWIV IPN
Tel: 0300 222 0000