I have been accused of abducting our child — what should I do?
Kirtsy Leedham answers some frequently asked questions in relation to parental child abduction.
The unlawful retention or removal of a child to another country without the permission of the other parent is considered to be child abduction.
Many parents who abduct their child have no idea that they have done anything wrong until they are contacted by the other parent’s legal team, served with court papers or even the police arrive at their door.
This can be confusing for families, especially those that have lived an expatriate or transient lifestyle. In some circumstances, you may feel you are just returning ‘home’ with your children as you always intended to. In other circumstances, you may feel you had no choice but to leave the country you were living in. Parents move their children from one country to another for varying reasons.
If you have abducted your child, whether unintentionally or not, it is important not to ignore the situation, and to discuss your legal and practical options with an expert.
Below are some questions that we are frequently asked, together with some tips and guidance if this situation applies to you.
Frequently asked questions
Have I committed a wrongful removal or a wrongful retention?
Child abduction falls into two categories; wrongful retention and wrongful removal.
A wrongful retention is when it is agreed a child can leave the country they are living in for a short period of time, such as a holiday, but the child does not come back at the end of the trip.
A wrongful removal is when a child is taken out of the country they were living in without the consent of both parents or a court order.
Is it a criminal offence?
In England and Wales, the wrongful removal of a child is a criminal offence, but wrongful retention is not. This means that the UK police may provide assistance when a child has been wrongfully removed, but are unlikely to be able to do anything if the child has been wrongfully retained.
In Scotland, there needs to be an existing court order in place for a wrongful removal to be a criminal offence, but such orders are not needed in England and Wales.
The position in other countries varies.
Even if criminal action is not taken, the other parent seeking the return of the child may be able to issue court action to ensure the child is returned.
What is the Hague Convention and does it apply to me?
Which countries are involved determines the action that can be taken. If the country you have taken your child from and the country they are now in are both signed up to the 1980 Hague Convention on the Civil Aspects of Child Abduction, the other parent may use the 1980 Hague Convention process to ask for the return of your child.
The court of the country your child is currently living in will make the decision.
The UK became a signatory to the 1980 Hague Convention in 1984.
If the 1980 Hague Convention is not an option in your situation, your child’s other parent may still be able to approach the courts to ask for the return of your child.
You should always speak to an expert lawyer to see what the options are.
The other parent has issued Hague proceedings. What are my potential defences?
There are six defences that are available in Hague proceedings:
- The left-behind parent was not exercising custody rights;
- The child is settled in the new jurisdiction;
- The left-behind parent consented to the retention or removal;
- Acquiescence of the left-behind parent;
- Grave risk of physical or psychological harm to you or your children; or
- Your child's objection to a return to the former country.
Establishing a successful defence is complicated. A defence may or may not apply to your particular set of circumstances. In-depth analysis should be considered with an expert lawyer before advancing such a defence.
I don’t think I have a defence — but I still do not want to return the children
Child abduction cases require analysis and careful consideration of all the issues. It may be that you do have a defence, you just do not realise it yet. Furthermore, there are plenty of cases that can be resolved by mutual agreement without court proceedings.
You should seek expert legal advice as soon as possible. Lawyers do more than just represent at court: they can negotiate, mediate and signpost you to suitable agencies and support networks.
Helpful tips and things to consider
- Not all family lawyers have extensive experience with international cases. Seek legal advice from a specialist lawyer immediately for information, advice and support.
- Consider mediation or other forms of alternative dispute resolution.
- Keep communication open between yourself and the other parent. If you cannot do it yourself, consider asking your lawyer or a third party to make communication.
- Communication should always be kept factual between the parties. It is easy to say things in the heat of the moment. This is not helpful for anyone and can make things worse.
- Resist the temptation to post about your circumstances on social media. Even if you think someone cannot see your posts, it is entirely possible they can see them.
- If you are served with court papers or the police turn up at your door, do not panic. Cooperate with them and seek advice from a specialist lawyer as quickly as possible.
- Seek emotional support. This is an extremely difficult time for you, your children and the left-behind parent. We can help you seek support.
- Consider whether you need a translator if the language the proceedings are being held in is not your first language. Legal language can be confusing for most people even if you can speak that language.
If you have any concerns relating to child abduction, please contact our child law solicitors.