What is Child Abduction and the Hague Convention

Many children have parents of different nationalities or have connections to different countries. If relationships break down, their parents may not agree on major decisions about their children including where they should live. Sometimes this may lead to one parent moving their child from one country to another without the agreement of the other parent. This is child abduction.

In this blog, we talk about child abduction, the Hague Convention and what you can do if you’re going through a international separation and children are involved.

As part of our Children Law Awareness Week, we’re discussing a variety of topics around children law, including child abduction and the Hague Convention. You can also watch a recording of our Family Matters webinar where a panel including a variety of lawyers with expertise in international children issues discussed “Cross-border and Hague Convention Child Abduction”.

What is child abduction?

Child abduction is when a person takes or sends a child under the age of 16 out of the UK (or from their home country) without the agreement, permission or consent of all those who have parental responsibility for the child, or without the agreement, permission or consent from a judge.

There are two types of child abduction:

• Wrongful removal – where a child is taken or sent abroad without agreement from all those who have parental responsibility for the child
• Wrongful retention – where a child has been kept in a foreign country following an overseas trip without the agreement from all those who have parental responsibility for the child

Is child abduction a criminal offence?

Wrongful removal is also a criminal offence in England and Wales, which means the police can get involved. However, wrongful retention is not a criminal offence. The police are unlikely to get involved if your child has been wrongfully retained in another country.

In England and Wales, child abduction and kidnapping are not the same thing. In fact, there are specific laws that say that, if a child is abducted by their parent, this is not kidnapping.

What is the Hague Convention 1980 and why does it matter?

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (which most people call the Hague Convention 1980) is an agreement between various countries which aims to ensure the return of an abducted child to the country where they normally live, so that issues about where they live in the future and with whom they spend time with can be decided by the courts of that country.

Currently, there are over 100 countries signed up to the Hague Convention 1980 including the UK.  Countries that have not signed up to this framework include Afghanistan, United Arab Emirates, Egypt and India.  Of the 100+ countries that have signed up, the Hague Convention 1980 is in force between the UK and about 80 of them. 

When a child has already been taken abroad or has not been returned from a trip as agreed, as a family lawyer the first question I think about is whether the child is in a Hague or a non-Hague country.  It has important consequences.

• If a child has been abducted to a Hague country, you can apply to the Central Authority in England (the International Child Abduction and Contact Unit) for an order that the child is returned to their home country under the terms of the Hague Convention.
• If a child has been abducted to a non-Hague country, then you will need to seek advice from a specialist family lawyer in that country. Co-operation between England and the country of abduction will be necessary, and because every non-Hague country will have its own laws on child abduction and each case will be dealt with individually, based on its own circumstances no two cases are the same.

What is habitual residence and why is it important?

For the Hague Convention 1980 to apply it needs to be established where the children are habitually resident.

Habitual residence is a legal term which refers to the place where a person lives regularly and considers to be their home. It’s a term that can be used to decide the law or jurisdiction that applies to a legal dispute. Habitual residence is a matter of fact. There are a number of things involved in working out what a person’s habitual residence is. The starting point is generally the country in which they live and intend to remain. But there can be some exceptions to this, for example members of the armed forces or those who work abroad for periods of the year. In these circumstances, the country in which you spend the majority of your time may not be your habitual residence.

The courts have been asked on many occasions to decide on where children are habitually resident. A child's habitual residence is the place where they are "integrated in a social and family environment". In order to assess that, the court will take into account:

• In which country the child goes to school;
• What language the child speaks;
• Where the child is registered with doctors, dentists or other specialists;
• Where the child's family are based and what, if any, relationships the children have with their family;
• Where the child's friends live.

As habitual residence is a matter of fact, an individual's habitual residence can change if their living situation changes. However, there must be an element of stability to a person's residence in a country before it can be considered their habitual residence. There is then no set time frame before a child might acquire a new habitual residence and so it can be acquired in a short space of time if supported by the factors outlined above. A work trip or a short stay abroad is unlikely to be enough to change a person's habitual residence though. So you can see why each parent’s interpretation of their current living arrangements is really important. 

When can I take my child out of England and Wales without it being child abduction?

If you want to travel abroad with your children, you need the consent of every person with parental responsibility. Parental responsibility is automatically given to birth mothers. If you and your ex were married or in a civil partnership when your children were born, then both of you will have parental responsibility. For births registered after 1 December 2003, provided their name is on the birth certificate, unmarried fathers will also have parental responsibility. Depending on your family’s situation, other people such as grandparents might also have parental responsibility.

For the majority of families, both parents will have parental responsibility for a child and that means they you must both consent before anyone can take your child abroad.

If you have a court order which sets out that a child lives with you and spends time with their other parent, then you can travel abroad for up to 28 days without the consent of your ex; however, we would also advise you to let your ex know in advance of any holiday plans and provide them with details of your travel plans.   

Your ex should not withhold their consent to unreasonably to you taking your child overseas for a holiday. If there is a dispute, you can apply to the court and ask a judge to make an order allowing you to take your child on holiday.

If you’re thinking about moving overseas with your child, it’s vital to speak to a family lawyer early on to ensure you do things in the right way.

If you believe there is a risk your child could be taken overseas without your agreement, your child has not been returned to the UK after a holiday or you’re facing allegations of child abduction, speak to a child abduction lawyer quickly This a traumatic situation for a parent to find themselves in. It is also a complex legal situation needing fast action. Taking the wrong steps can have far-reaching and permanent consequences.