Child abduction law
In England, Wales, Scotland and Northern Ireland, child abduction involves both the civil and criminal law. However, once a child has been removed from the United Kingdom, parental abduction is usually treated as a civil matter.
The Child Abduction and Custody Act 1985 and Part VI of the Family Proceedings Rules 1991 give effect to the Hague and European Conventions in English law, the Legal Aid Act 1988 and the Civil Legal Aid (General) Regulations 1989 provide financial support for litigants, the Family Law Act 1986 has provisions for making orders for the protection of children and the Child Abduction Act 1984 makes it a criminal offence for a person connected with a child to take or send the child out of the United Kingdom without the appropriate consent. A parent can also be charged with the common law offence of kidnapping.
The Revised Brussels II Regulation is effective without the need for domestic legislation and the court rules have been amended to accommodate the regulation.
The law in England and Wales is primarily governed by the Children Act 1989 (the Children Act), which came into force in 1991. This Act created the new concept of parental responsibility, meaning the duties, rights and authority which a parent has in respect of their child.
When a child's parents are married, they both have parental responsibility. When the father is not married to the mother, he does not have parental responsibility simply by being the father, but he may acquire it either by court order or by formal agreement with the mother (parental responsibility agreement). Since 1 December 2003 if both parents are present when the birth of the child is registered, an unmarried father will automatically acquire parental responsibility for his child. See the Births and Deaths Registration Act 1953 and Statutory Instrument 2003 No.3079(C.117) Children and Young Persons in England and Wales which, under paragraph 2(2) brings into force section 141 of the Adoption of Children Act 2002.
The Children Act emphasises that parents have continuing responsibility for their children and generally should have continued involvement in the children's upbringing even after separation. The Act provides a flexible system of orders intended to settle particular matters. Each parent is bound to obey any orders made under the Children Act. Orders made under the Children Act are based on the principle that the best interests of the child is the paramount consideration.
The orders available to the courts include residence orders, which settle with whom the child is to live, and contact orders, which deal with any form of contact which the child is to have with the other parent and significant people such as grandparents or step-parents. Orders expressed in terms of custody and access continue to have effect unless a court discharges and replaces them with a residence or contact order or the child turns 18.
The law in Scotland is governed by the Children (Scotland) Act 1995, and is similar to the law in England and Wales.
Further information regarding Scottish law and a separate booklet can be obtained from the Scottish Executive Justice Department.
The law in Northern Ireland is primarily governed by the Children (Northern Ireland) Order 1995 and is also very similar to that in England and Wales. Further information about Northern Irish law can be obtained from the Northern Ireland Court Service. Unless the court orders otherwise, a parent with a residence order may take a child out of the United Kingdom for a period of up to 28 days without a prior application to the court or the consent of the other parent.
Failure or refusal to return the child to the United Kingdom once this 28 day period has expired will constitute a wrongful retention of the child for the purposes of the Hague Convention and the Revised Brussels II Regulation.
In cases where abduction is feared and there is evidence to support that fear, the court may make a prohibited steps order to restrain either or both parents, from taking the child abroad at all.
Under the Child Abduction Act of 1984, it is a criminal offence in England and Wales for any person connected with a child, to take or send the child out of the United Kingdom without the consent of any other person who has parental responsibility for the child. A parent who has the right to have contact with or access to a child will usually also have parental responsibility. The term 'connected with a child' is defined in Section 2 of the Child Abduction Act 1984 and includes the parents or guardians of a child and anyone who has parental responsibility for the child.
No offence is committed, however, where a child is the subject of a custody/residence order, if the court which made the order has consented to the child being removed from the country.
The same provisions apply in Scotland and Northern Ireland. The relevant Acts are the Child Abduction Act 1984 (Scotland) and the Child Abduction (Northern Ireland) Act 1985.
- Summary of statutes and regulations
- Child Abduction and Custody Act 1985
- Child abduction Act 1984
- Family Law Act 1986
- Legal Aid Act 1988 Part IV
- Family Proceedings Rules 1991 Part VI
- Civil Legal Aid (General) Regulations 1989 Regulations 13 & 14
- Council Regulation (EU) 2201/2003 (Revised Brussels II)
- Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2005
- Family Proceedings (Amendment) Rules 2005
- European Communities (Jurisdiction and Judgements in Matrimonial and Parental Responsibility Matters) Regulations 2004Civil LawCivil Law