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16Apr2019

Child abduction – an offence of unspeakable cruelty

Child abduction – an offence of unspeakable cruelty

‘The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent.’

This is a quote from the former Lord Chief Justice, Lord Judge, in which he sums up how many families, who have been touched by child abduction, will feel. Of all the disputes that we come across in the world of family law, the discovery that a child has been taken from where they have been living to another country (and often to a location of which you are unaware) must be incredibly distressing: distressing not only for the left-behind parent, but also for the child involved. These are the usual circumstances in which child abduction cases appear before the court; although many people incorrectly associate the language with children being kidnapped by a third party. Although it is commonly said that the world is getting smaller, in these circumstances it can feel like a very big place. However, even when you know where a child has been taken, the process can still be riddled with difficulties as demonstrated below.

Hague Convention on Child Abduction

The law relating to child abduction is often complicated by factors such as whether the country in which the children have been taken is a signatory to the Hague Convention on Child Abduction. This international treaty requires signatories to return a child to its country of habitual residence where there has been an unlawful removal/retention unless one of the limited exceptions apply. In cases concerning countries who are not a signatory to the Conventions, the application of domestic law is used to try to encourage the return of a child.

In a recent case which appeared before Mr Justice Mostyn, two children taken to the Ukraine, were not returned to England and, as such, have been abducted. Although the court in this country ordered that they be returned, the mother has not complied with this order. In these circumstances, the court has to look at its wider powers as to how it can enforce compliance.

In this case, the Judge decided that one of the ways to encourage the parties to comply with his order, and to return the children to England, would be to make public what has been happening in this case. Accordingly, in January 2019, the Judge ordered that the usual provisions requiring case details to be kept private was lifted. The aim of this order was to make the mother and the maternal grandfather see sense and to agree, in advance of what seemed to him, to be an inevitable outcome of the proceedings in the Ukraine, to return of the girls to the land of their habitual residence.

Information in the public domain

Generally, publicity is used in cases where the location of the child is unknown. However, in this case the Judge has used the power available to him, not to find the children, but to apply pressure on the mother and her father (who the Judge found had acted in concert with the mother to defy the order), to make public the findings he had made. On making that order, the mother and maternal grandfather sought permission to appeal the decision (which was eventually not granted) and so there has been some delay in this information being placed in the public domain. It remains to be seen if the family are embarrassed by this information becoming public and whether it has the desired effect. However, it also shows the court’s willingness to take a wider view of the powers available to it and to tailor the orders it makes to the personalities involved.

Although not one of the reasons the Judge made the order, he was also conscious that there is a strong public interest in more extensive reporting of these cases due to the limited public awareness. In times gone by, the writer has experience of calling on certain authorities for assistance, only to be told that a parent cannot abduct their own child.

It is hoped that more transparency and reporting will open up the conversation about this area of law, and the potential consequences of this ‘unspeakable cruelty’. Future greater public awareness and interest can only mean that these actions will become increasingly less socially acceptable.

If you require family law legal advice, please contact Stephen Talbot on 020 3998 2020 or st@calibrate-law.com.

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

Stephen Talbot Senior Associate Solicitor Family Law 0203 988 2020