As Family lawyers we are very familiar with advising clients on the 'Hague Convention' (The Hague Convention on Civil Aspects of International Child Abduction) but in recent years we increasingly find ourselves representing clients dealing with the consequences of the abduction of children to Scotland from countries which are not signatories to the Convention.
These cases can sometimes involve allegations of domestic abuse, the involvement of government agencies such as the Home Office and investigations by Social Work professionals (sometimes in more than one country).
Some of the practical issues which can arise in these types of abduction cases:
Finding the children
One of the biggest challenges can be locating the exact whereabouts of the child or children brought to or believed to be in Scotland. Court proceedings can be raised without the child(ren)'s address where necessary, and the court can be asked to make orders in terms of s33 of the Family Law Act 1986 ordering public bodies or individuals, such as schools, the NHS, Police and Social Work departments, to disclose to the court the whereabouts of children. If there are concerns about disclosure of the address to a non-resident parent this can be provided confidentially to the court, and undertakings can be given by solicitors involved not to disclose information to their client.
Preventing onward abduction
Once the children are located in Scotland, the first priority is to avoid their removal to a third country. We will ask for surrender of their passports to the court, pending the outcome of the court proceedings, and can also seek court orders ('interim interdicts') preventing the abducting parent from removing children outwith the jurisdiction of the court until the conclusion of the case.
All Ports Warnings can be put in place by the Police to ensure that should a parent try to cross an international border to leave the UK with a child they are prevented from doing so by the Border staff/ Police pending further orders of court. In Scotland the granting of an interim interdict against removal of a child from Scotland is usually sufficient to allow Police Scotland to put in place an All Ports Warning.
Court proceedings in Scotland
Unlike Hague Convention cases, abduction cases from non-Hague countries mean litigating in the Scottish courts, usually the Court of Session in Edinburgh, seeking orders regarding the future care of the children under domestic child law. The court may be asked to make orders for return of the children to the other country concerned, and regulating contact and residence. Welfare issues will often be litigated in Scotland, rather than a jurisdictional argument being made about whether the children should be returned to the home country for the welfare decisions to be made there.
Legal advice from other countries
When litigating across international borders in family law we regularly have to obtain legal opinions from the home country regarding issues such as the enforceability of orders made by the Scottish courts in that country, the consequences of breaching the orders, and what protective measures can be put in place to alleviate any concerns expressed by the abducting parent should they and/ or the children return. This can also involve obtaining evidence for the Scottish court as to the operation of legal systems different to those we are familiar with, such as Sharia law.
Language barrier
International family law means dealing with language barriers on a regular basis. We may find ourselves acting for clients, and raising cases in Scotland, for clients who speak no English at all. This can make taking even simple instructions complex. Interesting nuances can also be raised when dealing with other languages – I have experience of two cases involving interpretation and translation from Arabic to English where issue has been taken by one party of the accuracy of the translation as a result of the translator speaking a different dialect of Arabic to the client. In cases involving children, and often the conduct of parents, losing the full meaning of the conversation, evidence or document can have significant consequences, so it is important to ensure translations are accurate and, if necessary, to obtain your own rather than rely on what has been produced by the solicitor acting for the other parent.
Cultural issues
Litigation involving individuals from different parts of the world can mean the intersection not only of different languages and different legal systems but different experiences of life. This may mean ensuring that adequate facilities are available for, and breaks taken to enable, clients and witnesses to pray or ensuring that the Court of Session's copy of the Qu'ran is present in court when clients are asked to swear the oath.
Should you find yourself needing advice if you suspect your child has been brought to Scotland without your consent, then we realise it is a distressing and anxious time. Our experienced and empathetic family law team have strong links with leading family solicitors worldwide. Please do get in touch if we can help further.
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