What is international parental child abduction?

With a continual rise in global mobility, it is no longer unusual for families to have ties to multiple countries. Unfortunately, this can lead to difficulties when a relationship breaks down and parents cannot agree in which country their children should live.

It is now increasingly common for family lawyers across Scotland to deal with the scenario where one parent wishes to return ‘home’ with their child or to move elsewhere in the world with them. However, where this occurs without consent of the other parent, or an order of the court, this can be deemed to be international parental child abduction.

International parental child abduction

International parental child abduction refers to a situation where one parent (with or without the help of others) removes a child from their country of habitual residence or retains them in a country that is not their country of habitual residence beyond an agreed duration, without the other parent’s consent, or a court order.

Habitual residence is not clearly defined, but generally refers to the place where the child normally resides.

The most common scenarios are where one parent removes the child from the country to flee elsewhere without the consent of the child’s other parent, or where one parent takes the child for an agreed holiday and fails to return them.

For the purposes of this article, it is assumed that the adult removing/retaining the child is a parent with parental rights and responsibilities. However, international child abduction cases can arise where the adult moving the child is connected to the child, but does not have any parental rights and responsibilities in respect of the child. Further consideration would require to be given to such a scenario on a case-by-case basis.

Child abduction is a very traumatic and emotionally turbulent experience for all those involved. If your child has been relocated without your consent either to or from Scotland, or you have, or are planning to relocate your child either to or from Scotland, it is important that you seek urgent legal advice from expert family lawyers who will be able to advise you on the legal remedies available to you.

1980 Hague Convention:

Along with many other countries, the UK is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980. This is an international legal instrument which seeks to secure the prompt return of a child to their country of habitual residence where they have been wrongfully removed or retained. Removal or retention of a child will be wrongful where it occurs in breach of a parent’s rights of custody in respect of a child which they were exercising immediately prior to removal/retention. So, in Scotland a parent requires to have been exercising their parental rights and responsibilities immediately prior to the abduction in order to have a basis to seek return of the child.

The Convention provides that children should be returned to their country of habitual residence without delay, as it will be that country which has jurisdiction to make further decisions about the child’s care arrangements.

If you are able to establish that a child has been wrongfully removed or retained, then the relevant court shall order the return of the child unless the defending parent is able to advance successfully one of the limited defences available under the convention.

There are broadly considered to be four defences to child abduction under the 1980 Hague Convention which are noted in brief below:

1. Settlement

Settlement is an available defence where more than one year has passed since the abduction, the child should still be returned UNLESS it is demonstrated that the child is now settled in the new environment.

2. Consent/Acquiescence

Consent is an available defence where the parent seeking return of the child is shown to have consented to the removal or retention of the child in advance of this taking place. Any consent should be clear and unequivocal.

Acquiescence is an available defence where the parent seeking the return of the child is shown to have consented or acquiesced to the removal or retention of the child after the fact. This can include explicitly consenting or failing to take action to secure a return.

3. Child’s objections

If a child is of sufficient age and maturity to understand the proceedings and their purpose and provides a clear and reasoned objection to a return order being granted, this can be used as a defence to any return order being granted. A child’s views will often be taken by a court-appointed Child Welfare Reporter, or in some cases, the child themselves may instruct their own solicitor.

4. Grave risk

Grave risk is an available defence if the parent defending an action for return is able to prove that the child’s return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. This is a very high bar to meet to successfully defend a return application.

My child has been abducted from Scotland

If your child is abducted from Scotland to a country which is a signatory to the 1980 Hague Convention, then you should seek urgent legal advice. You can make an application via the Scottish Central Authority (the Scottish Government) for return of the child to Scotland. This application is then transmitted to the Central Authority of the country where the child is present, and proceedings are undertaken in that jurisdiction seeking return of the child to Scotland. You will likely be appointed with a solicitor in that jurisdiction. The process that follows will differ from country to country and so you should seek legal advice based on your specific circumstances.

My child has been abducted to Scotland

The first step is to make an application for your child’s return to your country’s government or Central Authority. The Central Authorities transmit cases between one another, and they will assist you by transmitting your case to the Scottish Central Authority (SCA). The SCA will then arrange to instruct a solicitor on your behalf. You may also wish to be in touch with child abduction charity Reunite, or a lawyer local to you who may make a referral directly to a solicitor in Scotland who can assist in liaising with the SCA. In Scotland, the procedure is to raise urgent court proceedings in the Court of Session to seek the child’s return to their country of habitual residence, as well as other emergency orders. Such proceedings can take place remotely and there is no requirement for you to travel to Scotland to instruct your solicitor or participate in court proceedings.

The abducting parent in Scotland is also able to instruct solicitors to either facilitate a return, or more often, defend the action for return.

It is important to note that when determining whether to return a child abroad the Scottish court will only determine whether the child was wrongfully removed and should be returned. The Scottish court will not be tasked with determining who the child lives with or what contact they should exercise with the non-resident parent. These are questions which are to be determined by the court of the child’s habitual residence.

If your child has been abducted to a country that is not signatory to the 1980 Hague Convention, there remains other legal processes to secure their return. For instance, the 1996 Hague Convention can be used where there is a Scottish court order regulating the care of a child or ordering return of the child back to Scotland. This can be used between signatory countries to ask the country in which the child is being held to register and enforce the Scottish court order thereby granting the return of the child to Scotland. However, there are defences that could prevent such a process from being successful and of course every case will turn on its own facts.

Criminal Offence?

If your child has been abducted from Scotland by the other parent, this is not a criminal offence. In Scotland it is not a criminal offence for one parent to remove a child from the UK without consent, UNLESS the person removing the child has done so in breach of a UK court order determining the child’s care arrangements or prohibiting the child’s removal from the UK. This means that a parent removing a child from the UK without consent is illegal in terms of civil law, but is not a criminal offence. Please note parental child abduction can be a criminal offence in England and Wales.

Whether or not it is a criminal offence for your child to have been abducted to Scotland will depend on the law of the child’s country of habitual residence, the country from which they have been removed.

Our specialist Family Law team is on hand to provide urgent legal advice to anyone whose child has been relocated internationally, who is planning to relocate internationally, or who has been served with court papers seeking the return of their child to another country.

Other helpful information can be found on the Reunite website, a specialist child abduction-based charity at http://www.reunite.org.