Abduction

Created by: jadetaylorv
Created on: 05-12-19 20:56

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Child Abduction
- 1980 Hague Convention
  - Applicable up to the age of 16
    - 1996 Hague Conventions are more relevant to children over 16
- Brussels 2 Revised
  - Enhances the provisions of the 1980 Hague Convention
- What is Abduction?
  - 3 components
    - 1 - Wrongful removal or retention (Art. 3 Hague Convention 1980)
      - Removal - child is removed out of country without consent of other parent
      - Retention - a child is removed from the country originally with an agreement but is then retained in that country
      - Wrongful - another parents does not consent - a breach of custody rights under Art. 5
    - 2 - Habitual Residence (Art.4 HC 1980)
      - The child’s home
      - to remove the child from its home is a wrongful removal retention in breach of the child’s custody rights
    - 3 - Custody rights (Art.5 HC 1980)
      - Parents custody rights have been reached by the removal or retention of the child
- Defences
  - 1980 HC
    - Parent not actually exercising custody rights, Art.13(A) HC 1980
    - Consent or subsequent acquiescence, Art. 13(A) HC 1980
    - Grave risk to the child, Art. 13(B) HC 1980
    - Childs objections, Art. 13 HC 1980
      - Child’s objection is not objecting to the return to the particular parent but rather return to particular country
    - Settlement , Art. 12 HC 1980
      - Application should be made within 12 months of abduction
    - Childs human rights and fundamental freedoms , Art. 20
- Abduction from the UK
  - 1 - Identify countries you're dealing with
  - 2 - Identify applicable legislation
  - 3 - Identify wrongful removal/retention
  - 4 - Identify habitual residence of the child
  - 5 - Identify persons/institutions with custody rights
  - 6 - Identify breach of custody rights
- Procedure to Recover
  - Wardship proceedings
    - Proceedings through the HC where declarations can be made under the Child Abduction ad Custody Act 1985 confirming wrongful removal/retention, habitual residence, breach of custody rights -
      - endorsement from HC by way of wardship proceedings can be attached to HC application which will increase the likeliness of success of application
  - HC can also make declaration requiring that the child is to be returned
  - HC can exercise inherent jurisdiction
    - Can make any order i respect to he child - only limitation is wether an alternative order can be made via case law/statute
  - Wardship
    - The court overtakes custody of the child
      - A child may be made ward of the court if there is a fear of abduction
  - Enforcement of local orders
  - Mirror orders
    - An order can be applied for in abducting country which mirror local order and can be effective if an abduction occurs
- Orders Available
  - CA 1989
  - Protective Measures - Family Law Act 1989
  - Wardship proceedings
  - Do nothing
    - if they haven't commenced within 12 months it would be difficult for the court to order return of the child
- Legislation
  - Child Abduction Act 1984
    - s1 it is a criminal offence for any person connected with a child to take or send the child out of the UK without approbate consent
    - ‘connected with a child’ means parents/guardians of a child or any other person who has PR
    - s4 defences for when appropriate consent is not needed
  - Children Act 1989 S(8)
    - Prohibited steps order
    - Specific issues order
    - Mirror orders
  - Child Abduction and Custody Act 1985 - s5 & 8
    - Declarations which the court can make
  - Senior Courts Act Inherent Jurisdiction of the High Court
    - Wardship proceedings
  - Family Law Act 1986 s33, 34 &37
    - provides remedies in terms of location of a child
  - Practice Direction 12F
    - Overview in terms of what practitioners would do and how the court would respond in terms of international child abduction
  - The Family Procedure Rules 2010
- Prevention Steps/Orders
  - Criminal offence under Child Abduction Act 1984
  - Police Assistance
    - All Ports Warning
      - the child is under 16
      - no order is needed
      - police work with immigration officials and set up a Port Warning so that Immigration are alerted of the possible removal of a child from a particular airport
      - a real and imminent threat of the removal of a child from jurisdiction within the next 48 hours
      - Practice Direction 12F para 4.7
        details of information needed to be given to police in order to set up All Ports Warning
  - Wardship orders under inherent jurisdiction
    - PR is vested in the court
      - no meaningful steps can be taken in respect of the child without the courts approval
        if there is unlawful removal it will be considered contempt of court
  - Prohibited steps order s8
    - if a parent is having contact where there are abduction concerns there may be provisions to report to the police or deposit monetary bond or detailed itineraries
    - no immediate urgent concern of abduction
      - more to reinforce if there are concerns about potential abduction in future
  - Family Law Act 1986 s37
    - Surrender of passports
  - Child Rescue Alert
    - media publicity surrounding the removal of the child to try and affect the location and return of the child
- Recovery of the Child
  - Practice Direction 6C
    - disclosure of addresses by government departments
      - assists in tracing whereabouts of a child or tracing the person believed to be with the child
  - The Family Law Act 1986 s33
    - courts have the power in proceedings relating to an order made under s8 CA to require any person who they have reason to believe may have information regarding where a child is to disclose that information to the court
  - Child Abduction and Custody Act 1985 S5
    - tracing a child in attempt to secure welfare
  - Family Law Act 1986 s34
    - the court can make orders authorising an officer of the court to search for, take charge of and deliver a child to the court
  - Collection and location orders under inherent jurisdiction of the High Court
    - the child is placed in the temporary care of the a named person or institution until a further hearing
  - Tipstaff
    - enforcement officer of the high court
      - execute orders of the high court
        often act with assistance of the police and information of the lawyers - have the authority to entered and search premises and use as much force as necessary to give effect to the order if they reasonable believe that a child may be found
        may also handover of passports or travel documents that may be utilised to leave the country

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Abduction

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