International child abduction - what you need to know

International child abduction cases can be highly emotional and stressful for parents and children, but also a fast-paced, fascinating and a fulfilling area of family law. 

Members of our team have considerable experience of working with Counsel in the Court of Session on such cases, and we also have our own in-house Solicitor Advocates available for instruction in these matters. We act on behalf of parents seeking return of children, parents seeking to defend actions raised against them and can advise local authorities and other persons with an interest in proceedings.

What is international child abduction?

The 1980 Convention on the Civil Aspects of International Child Abduction is the international legal instrument which governs how countries deal with international child abduction. There are over 100 contracting parties to the Convention (although the Convention does not have the force of law in all of these countries).

A child is considered to have been abducted across an international border if;

• they have been wrongfully removed from their country of habitual residence; or
• wrongfully retained in a place that is not their country of habitual residence.

A removal or retention is wrongful when it occurs without the consent of a parent who was exercising rights of custody in respect of a child at the time of removal, or in the absence of an order of a court.

The ethos of the Convention is that where a child has been wrongfully removed or retained from their country of habitual residence then the child should be returned to that country, except in very limited circumstances, in order that any decisions about their future care arrangements can be taken where they have their closest connections.

Case law indicates that a child's habitual residence is the place where they are 'integrated in a social and family environment'. That can be demonstrated by a variety of factors which may include:

• The language the child speaks;
• Where they go to school;
• Where they are registered with doctors and dentists;
• Where the child's family and friends are based.

For the purpose of this article, it is assumed that the adult moving with the child is their parent or someone who has parental responsibilities and parental rights (PRRs) in respect of that child.

What happens if a child is abducted internationally?

If a child is removed or retained outwith Scotland in a country which is a signatory to the convention without the consent of a parent then that parent can make an application via the Scottish Central Authority (the Scottish Government) for return of the child to Scotland. This is then transmitted to the Central Authority of the country where the child is present, and proceedings are undertaking in that jurisdiction seeking return of the child to Scotland.

When a child is brought to Scotland in a potential international child abduction situation, and the parent in the original country seeks their return, proceedings are raised in the Court of Session by solicitors instructed by the Scottish Central Authority. The parent in Scotland can then instruct solicitors to try to advance one of the limited defences on their behalf, if appropriate. These potential defences are (i) consent/ acquiescence, (ii) objection of the child to return (iii) grave risk that return would expose the child to physical or psychological harm or place them in an intolerable situation or (iii) settlement i.e that the child is now settled in their new environment (which may only be engaged if the child has been living there for 12 months or more) .

How to avoid an allegation of international child abduction – the giving of consent

Often international child abduction occurs in dramatic, unplanned situations, but these cases can also arise without any intention of wrongdoing. There are occasions where a move can be anticipated and planned but the move may still amount to child abduction, as a result of a lack of awareness that to remove a child across an international border requires the consent of both parents. Whether intentional or not the abduction of a child precipitates a frenzy of activity, including the raising of emergency court proceedings under the 1980 Hague Convention.

The giving of consent plays a significant role in a child abduction case. It is possible to defend a Hague Convention application if it can be shown that the 'left behind' parent consented to the child's removal to or retention in another country. Those working in the public sector, alongside children and families, therefore need to be extremely careful about the recording of advice to parents about potential moves and whether consent is given. Such consent needs to be given openly and irrevocably and documented. Informal discussions at team/family meetings, comments in the Child's Plan or simple handwritten notes may not sufficient. The advice tendered to the parents and the consent, if given, by the left behind parent needs to be formally recorded and dated to avoid any ambiguity.

For those wishing to relocate with a child, doing so simply on the advice and recommendation of the department of Social Work is not sufficient to defend a Hague Convention application raised by the 'left behind' parent, particularly if no consent to the move has been previously recorded.

If there have been any court proceedings in the 'left behind' country, a court order authorising the move would also put the position beyond doubt.

Local authorities and international child abduction

Local authorities may find themselves supporting parents who have returned to Scotland after unsuccessful attempts to remove their child abroad, or supporting parents who have wrongfully removed or retained their children in Scotland.

The Court of Session rules require intimation of actions raised in Scotland seeking return of children to third countries to be made on the chief executive of the local authority, and the reporter to the Children's Panel, in the local authority area in which the child resides. The local authority, or the reporter, can lodge Answers and enter the proceedings should the child in question be known to them, and they have information which may assist the judge determining the application.

It is imperative that local authorities work closely with solicitors specialising in child abduction work to ensure that appropriate measures and consents have been given or obtained before a child travels abroad. Failing to do so could result in an expensive court process for a parent and leave the local authority open to complaints or reprimands.

Our specialist team are happy to provide advice to anyone concerned that their child may be abducted, whose child has been removed internationally without their consent, who has been served with court papers seeking the return of a child to another jurisdiction or who is considering international relocation and seeking to avoid encountering these issues. Please contact us to discuss further how we can help.