 |
International Abduction Or 'Kidnapping': Is It Ever Okay?
Candida Purser
What happens if parents who are expatriates separate and if one of them wants to 'go home' with the children? Is it okay for them to do it even if the other parent does not want them to? "Can I just go?" This is a question that I am frequently asked by expatriates - usually, but not always, by mothers. I am also asked the opposite question by fathers: "Can she just go and take my children away from me?"
The basic law in England and Wales is that, if there is a conflict between the parents that requires a court's involvement, then the consideration of the child's welfare and any decision about the child's residence should be dealt with by the courts in the country of the child's 'habitual residence'. For most families that is the country where the child lives. So if a child is removed from his or her country of habitual residence, without the consent of the other parent, it may lead to legal proceedings for the return of the child.
The approach of the courts differs depending on the country from which the child has been removed. If the country from which the child has been taken is a member of the Hague Convention on International Child Abduction, then an application can be made by the parent left behind for the urgent return of the child and the Hague Convention provides that the child must be returned. The members of the Hague Convention include all the countries of Europe and many others, including the USA, Hong Kong, several countries in South America, Australia, New Zealand, South Africa and several countries that were part of the old Soviet Union.
Under the Hague Convention there are, however, some situations, strictly interpreted, when a court will not order the return of the child to its country of residence despite the basic premise. Such circumstances might occur if, for example, more than a year has passed since the removal from the country of habitual residence without the parent left behind applying for the child's return, and if the child can be said to have settled in their new home. The child will also not be returned if the parent left behind can be shown to have agreed to the change in the child's residence.
A further reason may be if, as in the recent case decided by Sir Mark Potter, the President of the Family Division in England, the child objects to being returned and he/she is of an age when it is appropriate to take account of the child's views. Sir Mark recently refused to return a 13 year old boy to his mother in Portugal despite the father having not returned the child to Portugal after a visit. The circumstances of this case were very specific. There was a great deal of evidence about the boy's volatile relationship with his mother and, very unusually, Sir Mark had spoken to the boy in court. Sir Mark stated that "it was clear beyond argument that the boy is of an age and maturity for it to be appropriate to take account of his views". The boy expressed "rationally advanced objections (against the return to Portugal) and strong feelings that appear soundly based". As a result, Sir Mark decided against returning the child to Portugal as that would "consign him to a high level of strife and unhappiness."
These 'defences' to the return of the child are very narrow, and a court will not allow them to be relied upon unless there are exceptional and provable reasons.
Let's look at another example. A recent case of the Court of Appeal in England shows how strictly the Hague Convention rules are applied. In Re: P-J (Children) (Abduction: Consent) a Spanish father applied for the return of his children to Spain from Wales. The mother argued that the father had given his consent to their removal. However the court disagreed and returned the children to Spain. It found that although the father had previously said to the mother that, if their relationship broke down, the mother could remove the children, the father had not given his consent at the time of this removal. The court went on to set out clear principles that run to nine different points, as to what is 'consent'. These points include that consent has to be clear and unequivocal, and that it has to be 'operative and in force' at the time of the actual removal. So one can see that each case is fact-specific and the burden of proving the case lies with the 'abducting' parent.
Generally, provided that the parent left behind acts speedily and makes their application as soon as they can, the Hague Convention, if invoked, will ensure the return of the child to his or her country of habitual residence. Then the parent who wishes to leave has to take the steps they should have taken initially and apply through the courts of the country of habitual residence for permission to do so. Obviously by that stage it is hoped that the parents will be able to resolve matters through negotiation or mediation rather than more court proceedings, so that the child is not caused further upset unnecessarily.
So what happens if the child is taken from a Non-Hague Convention country, such as the United Arab Emirates, to England? Then English Law applies and the child's welfare is considered paramount. This means that the return of the child is not ordered automatically, as it might be under the Hague Convention. In Non-Hague Convention cases, the best interests of the child must be considered as a priority and whilst there may be a presumption that it would be better to return a child to his 'home' country, there could be circumstances when this is not so. The courts are able to consider a far wider ambit of matters, such as the degree of connection the child has with the country, how long have they spent in each country, the differences of the legal systems and how the courts of the country to which the child might be returned would deal with considerations about the child's welfare.
In Re JA (Child Abduction: Non-Convention Country) [1998] an English mother was not required to return a 3 year old girl to her UAE national father. There were concerns that the courts would not necessarily consider the best interests of the child rather than the views of the father. Additionally the court took into account that if the English mother was ordered to return the child to the UAE, she would go with her but would have to have sponsorship to do so and might subsequently be unable to relocate from the Emirates without the consent of the father. The impact of the local law on the freedom of the mother was seen as impacting on the welfare of the child. This case has been upheld in other more recent cases heard by the House of Lords involving non-Convention countries.
Wherever you live, it cannot be right, in most cases, for a parent to remove a child from his or her home and from the other parent unilaterally. Although there are different approaches taken depending on the country from which the child is removed, the basic legal principle is clear: It should not be done. It is not 'okay'.
So if you are a parent who wants to move away, you must get the consent of the other parent or permission from the courts of the country where the child lives. You cannot simply remove the child without there being potentially serious, possibly criminal, consequences. In any event there will be significant distress for the child involved. Try to discuss your plans and possibly seek help from a mediator to assist you and your partner to agree on the future for your child.
Candida Purser is a Specialist Family Solicitor and Mediator with 25 years experience in advising British Expatriates. She practises with Barlow Robbins LLP - a large firm in the South of England with a substantial Family Law department and a particular experience dealing with Expats. Candida has been an expat herself and practised in the Middle East, as a Family lawyer, advising British expats. She can be contacted on candidapurser@barlowrobbins.com.
Barlow Robbins
http://www.barlowrobbins.com
January 2010 |
|
