NB Section 1(6)
2. Preventive Court Orders
In general terms these can be obtained in two ways:
- under the wardship jurisdiction;
- by way of a prohibited steps order under the Children Act 1989.
3. The All Ports Warning System
Basically, when one suspects that a child is about to be abducted, the police can be asked to put all ports and airports on the alert to prevent the suspected abductor and the child leaving the country.
The child’s details remain on the `stop-list’ for four weeks.
When abductions do still occur, the legal machinery available depends on whether it is a Convention abduction.
C. Convention Abductions
1. Introduction
All those states party to the European Convention (except Belgium and Liechtenstein) are also party to the Hague Convention. As such, 93 per cent of cases are dealt with under the Hague Convention (which justifies why, given limitations of time, we only deal in depth with this Convention in this course).
The Hague Convention works according to an administrative system of inter-country co-operation. More particularly, each contracting state is required establish a Central Authority which shall administer its operation [Art 7].
2. The Gist of the Hague Convention
The Convention concerns not only the wrongful removal of children under 16 from one contracting state to another, but also the wrongful retention of such children.
A wrongful removal or retention occurs where that removal or retention occurs in breach of custody rights that are (or would be) exercised by the relevant person – normally a parent – in the child’s country of habitual residence [Art 3].
It is important to distinguish custody rights from access rights: see Art 3.
The terms are defined in Art 5.
NOTE ALSO
Re S (Custody: Habitual Residence) [1997] 4 All ER 251
Re C (Child Abduction) (Unmarried Father: Rights of Custody) [2002] EWHC 2219
Re H (Abduction: Rights of Custody) [2000] 1 FLR 201
NB Access rights cannot be treated as custody rights: S v H [1997] 3 WLR 1086 (access rights were all that the unmarried father had, therefore the mother was free to take the child out of the jurisdiction).
(a) Terminology
An abduction is only wrongful if it infringes custody rights in a child’s country of habitual residence. As such, it is crucial to know what is meant by habitual residence.
(i) Habitual Residence
The most recent authoritative statement on the notion of Habitual Residence (which is nowhere defined in a statute or Convention) is that supplied by Balcombe LJ in:
Re M (Abduction: Habitual Residence) [1996] 1 FLR 887
SEE ALSO
Re B (Minors) (Abduction) No 2 [1993] 1 FLR 993
“The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court”.(per Waite J).
Re M (Abduction: Habitual Residence) [1996] 1 FLR 887
As to the duration requirement, there are also some pointers in the case law:
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
Cf Re A (Abduction: Habitual Residence) [1998] 1 FLR 497
And Re J (Abduction: Custody Rights) [1990] 2 AC 562
(ii) Wrongfulness
This concept is important because the Convention’s provisions only apply to a `wrongful removal’ or `wrongful retention’.
Article 5 sets out the elements of wrongfulness.
(iii) Removal and Retention
These terms have been defined by the House of Lords in Re H, Re S [1991] 2 AC 476.
Wrongful Removal is a single event involving the child being taken out of the country in which he or she is habitually resident .
Wrongful Retention occurs when:
(i) a child, initially taken out of the jurisdiction for a limited period, is subsequently held there beyond the period agreed by the parties, OR
(ii) where the abductor declares his or her intention not to return the child at the end of the agreed limited period, OR
(iii) if a court in the child’s country of habitual residence makes an order granting custody rights to the other parent.
(b) The Basic Mechanics of the Convention
An application designed to secure the return of the child is made to one or other of the two Central Authorities under Article 8. This application discloses identification information about the abductor, the abductee and the place and person with whom the child is now believed to be.
Where the application is made to the domestic Central Authority (the normal case), it is the duty of that Central Authority to transmit the application to the Central Authority in the Country to which the child was abducted if it has reason to believe that an abduction has occurred [Art 9].
In turn, it is the duty of the foreign Central Authority to try to trace and secure the return of the child [Art 10].
Once found, and subject to Article 13, it is incumbent on the judicial or administrative authorities of the state where the child is being held to order the immediate return of the child if he was abducted under one year ago [Art 12].
And even if more than one year has elapsed between the date of the wrongful removal or retention and the date on which proceedings for the child’s return were instituted, the same duty applies unless it is shown that the child has now settled in his new environment [Art 12].
(c) The Article 13 Exceptions
(i) Failure to exercise custody rights, consent to, or acquiescence in, the abduction
These three factors are listed in Art 13(a), but the bulk of the case law turns on the last two: consent and acquiescence.
Consent
As regards consent, it is clear that the consent must be `real, positive and unequivocal’.
Re K (Abduction: Consent) [1997] 2 FLR 212.
T v T (Abduction: Consent) [1999] 2 FLR 912
Re H (Abduction: Habitual Residence: Consent) [2000] 1 FLR 294
Acquiescence
As regards the problematic defence of acquiescence, the most authoritative guide to the relevant principles is that supplied by the House of Lords in the following case.
Re H (Abduction: Acquiescence) [1997] 2 All ER 225
NB Lord Browne-Wilkinson added that, exceptionally, the `innocent’ parent’s intention would not have to be proved if there had been clear and unequivocal outward acts from which acquiescence could be inferred.
THUS NOTE
W v W [1993] 2 FLR 211
Re D (Abduction: Acquiescence) [1998] 2 FLR 335
Re B (Abduction: Acquiescence) [1999] 2 FLR 818
COMPARE
P v P [1998] 2 FLR 835
Re I (Abduction: Acquiescence) [1999] 1 FLR 778
(ii) Grave risks associated with returning the child: Art 13(b)
The greatest difficulty in showing this ground is that the risk must be severe.
Re N (Minors) (Abduction) [1991] 1 FLR 413
“[I]t is plain that it is not a trivial risk and it is not a trivial psychological harm which is envisaged and which has to be justified and … the intolerable situation envisaged has to be something extreme and compelling” (per Bracewell J).
TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515
Furthermore, the gravity of the dangers cannot be of the abductor’s own making.
Re C (A Minor) (Abduction) [1989] 1 FLR 403
Nor may they be merely general dangers
Re S (Abduction: Custody Rights) [2002] EWCA Civ 908
(iii) The child’s objections
As a rider to Article 13, it is provided that if the sufficiently mature child objects to being ordered back to his country of prior habitual residence, the authorities need not order his return.
Re S (Minors) (Abduction: Custody Rights) [1993] 2 All ER 683
This case establishes that the child’s objection must be in respect of the ordered return.
It needs to be a blanket objection to returning to his country of prior habitual residence (thus, an objection in respect of returning to see the other parent during the summer holidays is not enough).
Finally in this context, it is fairly clear that the test is not really similar to that of Gillick competence. There are several cases where the views of very young children of 7, 8 and 9 have held sway.
Re T Abduction: (Child’s Objections to Return) [2000] 2 FLR 192
(b) The residual discretion of the court
Even where the abducting parent can make out one of the exceptions that might justify the child remaining in the country to which it was taken, the judicial or administrative authority retains a discretion to return the child. [Art 18].
This discretion is consonant with the spirit of the Convention – the primacy of securing the return of abducted children wherever possible and appropriate.
H v H [1996] 2 FLR 570.
Re D (Abduction: Discretionary Return) [2000] 1 FLR 24
(c) Access Rights
Under Article 21 of the Convention the Central Authorities of each contracting state are bound to promote the peaceful enjoyment of access rights (in cases where the child in question will be remaining in the new country).
The applicant invokes the Convention in this respect in the same way that he would if he was seeking the return of a child.
NOTE
Re T (Minors) (Hague Convention: Access) [1993] 2 FLR 617
D. Non-Convention Abductions
Here, there are two classes of children to consider: incoming abductees and outgoing abductees.
1. Children Abducted from Abroad
Where a child is abducted from abroad, and brought to the UK, the question of the child’s return is generally dealt with under the court’s wardship jurisdiction (assuming the child and his family have sufficient connection with the UK for the court to be seised of jurisdiction).
The relevant principles have evolved under the common law.
Re F (Abduction: Jurisdiction) [1990] 3 All ER 97
Re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231
2. Children Abducted from the UK
Where a child is abducted from this country and taken to a non-Convention country, there is little by way of legal machinery to secure the child’s return. The only prospects are either extradition of the abductor, or applying for an order from the English court if and when the abductor returns to the UK.
JM/CL/V
May 2003
