UK Law and Practice Contributed by: Emma Post and Nicki Beale, NE Family Law
• he is a person named in a child arrangements order as a person with whom the child is to live; or • he has custody of the child. Written consent is required from the individuals set out in Section 1 (3)(a)(i–v) of the Child Abduction Act 1984 – namely: • the child’s mother; • the child’s father, if he has PR for the child; • any guardian of the child; • any special guardian of the child; • any person named in a child arrangements order as a person with whom the child is to live; and • any person who has custody of the child. A person does not commit a criminal offence if one of the exceptions set out in Section 1 (5) of the Child Abduction Act 1984 can be satisfied – namely: • the removal is in the belief that the other parent has consented or would otherwise consent if aware of all the relevant circumstances; • all reasonable steps have been taken to commu - nicate with the other parent that it has not been possible to do so; and • the other parent has unreasonably refused to con - sent. 3.2 Steps Taken to Return Abducted Children The UK is a signatory of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”). The Hague Convention prevents children from being wrongfully removed or retained in a country that is not their habit - ual residence (Article 1). If a child has been abducted (see 3.1 Legality ) to a country that is a signatory of the Hague Convention, the first step is to ascertain whether the UK has rec - ognised the state’s accession. This can be checked via the Hague Conference on Private International Law (HCCH) website. Application to the Central Authority The Hague Convention requires countries to have a central authority (Article 6) – in England and Wales this is the International Child Abduction and Contact Unit
(ICACU) under the Lord Chancellor. The first remedy in most cases is for the left-behind parent to apply to the central authority to instigate proceedings in the other state for the return of the child – the application can be made by the parties themselves or via solicitors. Left-behind parents are entitled to non-means or merits-tested legal aid if they apply for a return via the ICACU. See Part 12F, paragraph 2.5 FPR 2010. If the application is not made via the ICACU and solici - tors are independently instructed, the costs will vary depending on the firm. The summary procedure is as follows: • the application for a return must be made within 12 months of the child’s wrongful removal or retention; and • a decision on the return must be made within six weeks. Defences to return include the following: • consent (before removal or retention) or acquies - cence (after removal or retention) of the left-behind parent; • the left-behind parent was not exercising “rights of custody” at the time of removal or retention (defined in Article 5) as per Article 13 (a); • there is a “grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situ - ation” as per Article 13 (b) – the threshold is high; and • the child objects to the return (to the country as opposed to the left-behind parent) and has attained “an age and degree of maturity at which it is appropriate to take account of its views”. Application to the Court The court in England and Wales can also make a dec - laration of wrongful removal if it will assist the foreign court in understanding whether the removal was con - trary to English law, or alternatively can bring substan - tive proceedings for the return of the child in the Eng - lish court, where the court will exercise its full welfare jurisdiction (Section 1 Children Act 1989); however, it can approach by way of a summary assessment (as
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