Fight or flight: International child abduction

00:00:05 David Lee, Host

Hello and welcome to ‘Podcasts by Brodies’. My name is David Lee, and in this series we will be discussing the opportunities, trends and challenges that Brodies experts experience when working in areas of law with an international dimension.

Brodies lawyers are globally connected experts in their fields, they advise clients across all key sectors, from real estate to education, energy, food and drink, life sciences and personal and family matters.

Today we’re discussing one of those Personal & Family matters and looking at International Child Abduction.

I'm joined for this podcast by Marie Clark, an advocate who specialises in family and child law and by Lisa Girdwood, a partner in the family team at Brodies, welcome to you both.

Marie, if I can start with you, a simple question perhaps, what do we mean by International Child Abduction?

00:01:02 Marie Clark, Advocate - Arnot Manderson Advocates

This concept relates to parental child abduction, and it involves the nonconsensual removal of a child by a parent from the country of the child's habitual residence.

It can include a parent removing the child or fleeing with a child to another country. It can also relate to retention of a child away from the place where the child is habitually resident, and this might occur when a child is, for example, on holiday with one parent, perhaps visiting relatives, and where the parent and the child do not return.

The removal or retention of a child from its country of habitual residence without the consent of the other parent is wrongful in law has been fashioned to ensure the prompt return of children removed from or retained away from their country of habitual residence. It being recognised that such a prompt return is in the interests of the child.

00:02:13 David Lee, Host

How common is international child abduction?

00:02:16 Marie Clark, Advocate - Arnot Manderson Advocates

It's difficult to be precise as to the commonality of international child abduction, because some cases will resolve without the need for judicial determination.

However, in 2022, for example, the number of cases which required to come before the Court of Session in Scotland was 19. Due to the frequency of the requirement for judicial intervention, there is a fairly mature jurisprudence surrounding the legal aspects of such cases. This just means that there are a number of court decisions upon which to rely in guiding the approach to these cases and ultimately in guiding submissions to the court. A feature of this case law is that the decisions are generally not based upon the welfare of the child, which is quite singular in child law. The focus of the convention, which no doubt we will hear about from Lisa, is to return the child to his country of habitual residence to enable that court to make decisions based on what is in the best interests of the child.

00:03:27 David Lee, Host

Lisa, Marie mentioned the convention there, what convention is in place to cover international child abduction and why is it there?

00:03:41 Lisa Girdwood, Partner

The convention which is in place is The Hague Convention on the Civil Aspects of International Child Abduction of 1918, this is a multilateral treaty which is endorsed very widely, it is one of the most widely endorsed international treaties which we have. It has the force of law in Scotland and by virtue of the Child abduction and Custody Act 1985.

Now, why is the convention there and who does it seek to protect? As Marie has already alluded to, it's a convention which is designed to provide a swift route for the return of children who have been abducted by a parent from one Hague Convention country to another, or a child who has, in whatever circumstances, been unlawfully retained away from the country of their habitual residence.

Habitual residence is a key concept which I know we'll talk a bit more about later but the beauty of the convention really, in many ways, is its simplicity. As we'll no doubt discuss further, its primary aim is to provide a really quick route for the return of internationally abducted children and that's unusual in litigation. As you may know, litigation can often be clunky and cumbersome, but child abduction litigation has very strict time limits which are imposed upon lawyers to bring things to a conclusion very quickly.

The primary aim is to preserve the status quo for a child, so to ensure that the child's status quo, the place where it has lived, is restored to that child just as quickly as can possibly be achieved, and also really to deter parents from crossing international boundaries to search out a jurisdiction which they think for whatever reason might be more favourable to the custody arrangements they seek.

Just to echo what Marie says, this is not generally - although in an oblique sense it can be - about welfare and that's a very unusual thing for family lawyers because in our jurisdiction welfare is paramount. It's the guiding principle of most decisions about children but that's not the case generally in child abduction work because the received wisdom, which informs the convention, is that the country where the child has come from - the child's habitual residence - is the best place to decide the child's welfare, not the country to which the child has been abducted.

00:06:21 David Lee, Host

Marie, just coming back to the convention, how many countries are signatories to the convention and what are the challenges if a child is abducted from a country that is a signatory but it's taken to a country that isn't?

00:06:37 Marie Clark, Advocate - Arnot Manderson Advocates

It is of great importance that there are many countries who are signatories to this invaluable convention, and at present there are 103 countries who are signatories. These Member States are widespread globally and diverse, but you've asked what the challenges are if a case involves a country that is not a signatory and those challenges are many.

It is always a cause for concern when a child is retained or removed to a non-convention country and very occasionally there may be a regulatory protocol which could be entered into between the UK and that other country. This is really very rare, but one such protocol exists in connection with UK's relations with Pakistan. So where there is no protocol of non-signatory countries, the parents are then left with seeking orders. Perhaps, if the child is present in the UK and has been taken from a non-signatory country to seek orders in terms of the Children's Scotland Act 1995, or if the child has been taken from the UK to a non-convention country to seek such orders in that country which may assist in securing return of the child.

If the child has its habitual residence in the UK, then the UK can be asked to make such orders which could then be sought to be enforced in the non-conventional country. These types of orders are based on the welfare principles, as Lisa has talked about, where the interests of the child are paramount. As we've already noted, that is very different from Hague cases where the founding principle is that it is the court of the child's country of habitual residence that is best placed to decide issues of welfare, and that the child should be returned swiftly to that jurisdiction for that purpose.

If there are concerns around the safety of a child upon return, it may be possible to seek an interdict against removal from the country where the child is presently located. The courts in the UK have emergency jurisdiction in such circumstances where the child is present within the UK and that is in terms of the Family Law Act 1986.

It is always a very difficult situation where one is dealing with an abduction to a non-convention country and the matter of remedy requires to be assessed, bearing in mind the legal system that exists in that non-convention country and what remedies might be obtained here at home that might ultimately be enforced.

00:10:06 David Lee, Host

I think both yourself and Lisa have mentioned the phrase already, "habitual residence," why does that really cut to the chase in this context? Why is it so important when considering international child abduction cases?

00:10:23 Marie Clark, Advocate - Arnot Manderson Advocates

It is supremely important, and habitual residence is king, or queen, in the world of child abduction. The whole purpose of the convention is the prompt return of a child wrongfully removed or retained from its country of habitual residence to that country, and consideration of the habitual residence of a child is where we start our legal thinking or our legal approach to matters of this type.

In the case of A against A, which was a Supreme Court UK case, Baroness Hale of Richmond examined habitual residence and she drew together the threads of the previous case law and provided critical relevant points for consideration.

It was noted in that case, which is actually a very important case in our analysis of the law surrounding these types of matters, it was noted by Baroness Hale that in certain circumstances, a child could acquire a new habitual residence in a single day dependent upon circumstances.

There are two other cases that I would wish to share with you, and that is a case called In re R [2016] where Lord Reed, in a Scottish case heard by the UK Supreme Court, emphasised that it was the stability of the residents of the child that was important and not whether that residence was of a permanent character. There was, in fact, no requirement that the child should have been resident in a country for a particular time, let alone there should be the intention of a party to reside there permanently or indefinitely and accordingly we see the move away from the intentions of the parties and the focus upon the circumstance of the child in any particular environment.

Finally, there is a decision of Lady Wise in The Outer House of the Court of Session in 2021, in the case of F against M. Now this is an important decision because it instructs us that parents are not able to contract out of the convention. It was noted that the children had shared a home with both parents in Scotland, had attended school, visited extended family and socialised with friends and Lady Wise found that, as a matter of fact, their habitual residence had altered. She noted that parents cannot enter into a contract denying the effect of the convention, and importantly, that children were not to be regarded as parcels of property whose future could be determined solely by contracts or actions of adults. That an agreement that a child's habitual residence would not change, perhaps between parents, cannot be enforced if, as a matter of fact and the day-to-day life of the child dictates that habitual residence has indeed altered.

So as we can see, habitual residence is very often where we start and finish in connection with these matters.

00:14:17 Lisa Girdwood, Partner

All I would add to that from the perspective of parents and generally, our potential clients, is that it may come as a huge surprise to them to learn that in fact they don't have autonomy when it comes to their child's habitual residence. It seems to fly in the face of a layperson's understanding of what it is to have parental rights and responsibilities in our country, because parents may find that whatever they have intended, or whatever they intend for themselves, their child's habitual residents may have shifted. And the effect of that may be on one of you, ride a coach and horse through the object of the convention because the child may no longer be habitually resident in the original country. And therefore the convention cannot be engaged if one parent then wants to try to invoke it, because the child may no longer be habitually resident there.

So it's a really important topic which may be difficult for potential clients to understand.

00:15:23 Marie Clark, Advocate - Arnot Manderson Advocates

Yes, I was just going to say on this point and I think it is very important because parents often feel, as Lisa said, that they have autonomy over the direction of the lives of their children, but in this particular case, despite the fact that they had entered into - what was described within the body of the agreement as legally binding, it had no effect when coming to determine what the habitual residence of the children actually was.

It is a sobering observation and reality of this aspect of law that parents do not have autonomy over the children's habitual residence, that it is a matter of fact rather than law.

00:16:11 David Lee, Host

Coming back to you, Lisa, we've heard that phrase a couple of times from Marie, "habitual residence is fact not law." Coming to the law, what about the court process for resolving international child abduction disputes? What are the processes involved?

00:16:29 Lisa Girdwood, Partner

This is slightly more prosaic, of course, but the child abduction cases are heard in Scotland in the Court of Session, our highest civil court. The process is, as we've said, at its heart; expeditious, unlike many forms of litigation.

Each country which is a signatory to the convention has set up something called a "central authority," and it's through the cooperation between central authorities that these proceedings evolve. So if a child has been abducted to Scotland from another Hague Convention country then the parent in that country - the left behind parent if you will - makes an application through the central authority here in Scotland (part of the Scottish Government) for the return of their child.

Equally if the child has been taken from Scotland to another country, then the parent here would make an application through the two central authorities, and the case would be heard in that other country. But if the case is here - so we have a child abducted to Scotland from elsewhere - then the Scottish Government Central Authority will instruct a solicitor on their list of approved solicitors to conduct abduction work to begin proceedings.

We usually try to arrange a voluntary return, that rarely happens, and we would expect that to be agreed within a very short time frame - from the point of being instructed that would be within about 48 hours. So the pressure on the instructed solicitors and advocates is pretty intense on the assumption that voluntary return can't be agreed.

Then an application, something called a "petition" is presented to the Court of Session. It's often the case that we have to take emergency steps to protect a child because children are often tragically abducted from one country to another. So if there's any risk that that might happen if the parent is known to have connections with more than one country, we have to do whatever we can to ensure the child isn't abducted somewhere, and we do that by asking the court to give us emergency hearings. And thankfully the Court of Session makes itself available 24/7 to hear such applications.

Marie and I have, in our time, been involved in some of those and some more exciting than others. I'm sure she'll remember the one where we both found ourselves in the Court of Session at 2am on Saturday morning trying to prevent the onward abduction of a child and a bleary-eyed judge had to get out of his bed to give us the orders we sought. We got them, we had messengers at arms on standby and they served the papers at 6am the following morning and prevented the onward abduction of that child. Alongside the orders from the court, we have to get what we call all ports alert or port stop orders and that's through Police Scotland and they alert all the ports and airports with information about the child to prevent the child being abducted. Pretty intense procedures for us, but most of all, for the poor parents who are left behind in other countries.

Just another note to add to the intensity of this litigation, often our clients are not English speakers because they, as Marie has said, they can come from any part of the world and often our instructions are taken either over the telephone or using one of the many platforms we now have but with the assistance of interpreters. That is another obstacle to us proceeding quickly, but we nonetheless have to proceed quickly with the assistance of interpreters, always mindful that this is someone's child and it's if it's difficult for us, it's certainly difficult for them.

The only other thing to say is the novel aspect of this process is that evidence at a final hearing, which would usually be within a short time frame as Marie will explain, is very rarely given in the normal way by witnesses being in court, most of the evidence will be by affidavits, by its own statement and then with the Advocate making submissions and the court will then make its decision either on the day or within a few days of that hearing. It's a very rare thing for parents to come to court physically, to give evidence about their children and for the decision to be made.

00:21:13 David Lee, Host

Lisa touched on that, Marie, why is it important that this is such a quick process?

00:21:19 Marie Clark, Advocate - Arnot Manderson Advocates

Expediency is recognised as being in the interests of the child and that it is considered to be very much in support of those interests that a child has promptly returned to its home, it's to enable that court in that country to make the decisions about welfare and that is about the caring arrangements, about the contact arrangements, might be best for the child.

Everything is directed towards expediency and indeed the guidelines indicate that cases that are brought before the Court of Session ought to be concluded within a period of, say six weeks, and it is true that that puts some considerable pressure not just on the participants that the council who are involved, the solicitors who are involved in these proceedings, but also in the court because the court has to facilitate the hearing of those proceedings.

When Lisa was reminding me of that dash late Friday/early Saturday morning when it was not an option to wait until the Monday because the risk to the child was for further onward abduction was so great. I'm also reminded that the clerk too who supports the court had to get out of bed and had to be there to support the judge and to provide the interlocutor - which is the court order that we needed to provide protection to the child. I'm also reminded that the clerk made tea and gave us biscuits, so there have been a number of cases where we have had to attend court late into the night and where it has not been possible for matters to conclude. There was another case where Lisa and I were in court until very late at night which again detains the whole court structure, it's not just the judge, but the clerk as well who has to support that.

00:23:30 Lisa Girdwood, Partner

What I would add to that, I think the case that Marie is probably mentioning is one where we were in court on this particular evening late and it involved two young people who were aged around 11 and it concerned an abduction from the United States to Scotland and in that case a psychologist was called to court to give evidence. And so concerned was he about the welfare of these children that he made himself available to return to court very late to make submissions to the court, which were ultimately persuasive of our application for return.

I just think that gives some indication of the seriousness with which all the professionals involved approach this work, because there is little that is more important than the welfare of young people, particularly when they're in the horrible circumstances of an abduction.

00:24:27 David Lee, Host

We're talking about quite a complex, fast-moving area of law here and again, fraught with emotion for obvious reasons, what can parents caught up in such cases do to protect themselves and their best interests?

00:24:50 Marie Clark, Advocate - Arnot Manderson Advocates

I think I've already identified that contractual arrangements are seldom going to prevail.

If we set that to one side, it is a very difficult situation. If seeking to guard against removal and there is a suspicion that removal could be considered by the other parent, then of course being observant about the children's passports, about documentation, is a practical step that can perhaps be deployed.

If there is a proper foundation to the concern for removal, if you consider that there has been planning, then it may be possible to seek orders from the court for interdict to prevent that removal.

It is a more difficult situation where a child is retained away and, I think I mentioned at the outset, that this can often happen when a child is taken by one parent to the other country, perhaps on a holiday or to visit extended family, and they do not return and that is a very difficult situation. Prompt proceedings are imperative to avoid any suggestion of acquiescence in that retention because quite often when a child is retained elsewhere, it can be said that the left behind parent acquiesced in that retention, and so everything requires to be dealt with as a matter of priority, there should be no delay in seeking legal advice and initiating the appropriate proceedings if that is what is required.

00:26:37 Lisa Girdwood, Partner

The only thing I would add to that would be if you're in the position of the parent who actually wants to go and the much more straightforward thing to do is to seek the courts authority to relocate and to have a really good and robust relocation plan, that, of course, is a whole other area for discussion, but a parent who wants to move beyond the confines of the UK ought to take those plans before a court if the other parent can't agree to the plan and have it adjudicated upon.

Much better to do that, and to work out whether or not it's going to be possible than to abduct the child, be forced to come back and then come to court not with clean hands, but with the badge of abduction pinned to you.

Much better to try to seek the courts authority to relocate in advance of doing so.

00:27:32 David Lee, Host

That leads us on to another important term here, Marie, "consent to removal." What is consent to removal in this context? Again, what's your advice to a parent if the other party is seeking that kind of consent?

00:27:48 Marie Clark, Advocate - Arnot Manderson Advocates

Consent is hugely important because the convention is in connection with non-consensual removal, that is abduction, of course, by its very essence is absent consent.

Consent in this area of law requires to be clear and unequivocal and there can be no ambiguity about the consent and that has been the law for many years. It is often the case that the courts require to determine whether consent has in fact been given and if it has, there may be no return. It might be submitted that verbal consent was given to removal and the court will consider the circumstances of that consent. The court will consider, for example, whether removal was clandestine and furtive, which would usually militate against consent having been given, not always because there can be other elements to the situation which might provoke a party to remove children in a clandestine or furtive way. For example, if there was domestic violence that was a feature of the relationship but similarly, it may be argued that there has been acquiescence legitimising the removal or retention, and this is where a party, once the child is in that other country, signals that they are content that the child remains there and that is where we come to consider the influence of acquiescence in legitimising that removal.

Acquiescence might take the form of retrospective consent by signifying that return is no longer sought with a measure of acceptance of the removal or retention. Once again, it is very important to act promptly to avoid any misconstruction of that approach.

With regard to issues of consent, Lisa has already indicated that the process is generally involving affidavit evidence which is written evidence given on oath by a party and not involving parties attending court for the purpose of giving evidence to the court. However, where the issue is reliant upon a determination of consent, then parties may in fact require to give evidence to the court so there can be a judicial determination of the position of consent. It is hugely important for the court to be able to determine whether there has been consent or acquiescence to a removal because that will be a bar to return.

00:30:55 David Lee, Host

Lisa, are there occasions where flight and leaving the country with the child seems like the only option for a parent?

00:31:04 Lisa Girdwood, Partner

Yes, sometimes. For example, in cases of domestic abuse or coercive control, it might seem like the only option for a parent if they are the victim of that kind of behaviour, or tragically, if a child is the victim of that kind of behaviour and then the only option might be flight.

Now, although we've made clear that the object of The Hague Convention is the expeditious return of children to countries of their habitual residence, there is a potential defense to these applications and that defense is known as The Grave Risk of Harm Defense. That defense is that if the court concludes that returning the child will expose them to a grave risk of harm or place them in an otherwise intolerable situation then the court might not return that child, but that's a really high bar in fact to get over.

Sometimes we talk about the warzone defense, if a child is going to be returned to a warzone, then it might have to be as serious as that because our experience of cases where we've tried to invoke that defense is that the court is really reluctant to do it. Again, because they have huge respects for their Hague Convention neighbours and they regard those countries as being perfectly capable of deciding how to protect a child, even if there are risks from the other parent.

In recent times, there was a case where, although allegations were made that the parent who was left behind in Canada abused both drugs and alcohol, it was concluded the child should nonetheless be returned because the Canadian courts were capable of protecting that child on return because remember, the child isn't being returned to a parent under the convention, the child is being returned to the country and whatever arrangements are to be made will be determined once the child is in that that Hague Convention country.

There was another case recently where a child was not returned and the basis for that non-return order was that the child's elder sibling, who was over 16 and therefore not subject to the convention, was not going back and the younger child, who was the subject of the case, expressed the view they did not want to return and a psychologist reported that to separate the siblings would place that child in an intolerable situation, so the child was not returned. That's quite an unusual outcome as our experience in cases such as this, but that certainly shouldn't be a disincentive if a parent is genuinely the victim of domestic abuse, or if a child is a victim, then parents have to do what they believe to be right to protect their children.

00:34:12 Marie Clark, Advocate - Arnot Manderson Advocates

I'm just reminded of a case where there was an established history of domestic abuse where there was conviction, there was photographic evidence of injuries inflicted and this was on a return to Ireland and the court here decided that Ireland was capable of providing protective arrangements, whether that was accommodation which would be necessary and protective orders through the courts, and that was quite a difficult decision to receive.

However, that wasn't the end of the discussion before the court, because what the court was persuaded about was a lack of financial protection and even though the courts could provide, in Ireland, protective orders and accommodation could be made available, there was no state support by way of providing benefits and therefore to return the child would render the child and indeed the mother destitute.

So whilst the grave risk on the issue of physical harm was rejected, that the other harm, which was to do with financial deprivation was accepted and the court refused to return the child in that situation. There are perhaps more aspects to the argument for grave risk than would immediately appear to be the case and all of these aspects should be explored.

00:35:55 David Lee, Host

Just bringing things to a conclusion, I'll just ask both of you. You must have had some pretty difficult conversations with clients over the years in such an emotive area of law, how, as legal advisors, do you pick your way through the difficult emotions of these cases?

00:36:17 Lisa Girdwood, Partner

It is extremely difficult actually, but in fact some of our most rewarding cases have been child abduction cases where we receive annual updates and letters from clients whose children have been restored to them, so we always have that in mind when we're embarking on a new Hague Convention case.

The outcome couldn't be of more importance to the people involved and to be frank, all family law is difficult, all parents and children are hugely important to us, so we're very accustomed to having to put our hard hats on really and our, as you as we see it, coats of armour to try to be resilient for ourselves in these cases.

It's really important not to become too enmeshed in the emotion of the client, because if we do that, we lose our professional perspective, which is, after all, what our clients expect of us.

00:37:13 Marie Clark, Advocate - Arnot Manderson Advocates

I think that's correct. I had forgotten about those lovely annual letters, Lisa, that are so satisfying and rewarding to know of. Lawyers, particularly in this field of law, are trained to deal with the most anguished case and of necessity we required to develop a resistance to the emotion, and perhaps some might think of it as a rather thick skin.

But interestingly, certainly as an advocate rather than as a solicitor, it is absolutely plain that there is a high human element to these types of petition, but they often raise really interesting theoretical legal issues and they can be intellectually intriguing and stimulating, and we are very much engaged with being very busy with the fast pace of the process that we are perhaps able to distance ourselves because of that, from over identifying with the distress of the parties.

But we are never blind to that distress, of course we recognise that this is the most supremely important decision that is to be taken in connection with the children of these parties and the most difficult family circumstances. But, as an area of law, it tends to be quite exciting because of the swiftness of the process and also because of the very interesting legal aspects that are raised and can be argued.

00:39:02 David Lee, Host

Thank you very much to the thick skinned and occasionally bleary-eyed, Marie and Lisa, for the terrific insights today.

Please listen out for more episodes in this ‘Podcasts by Brodies’ series with an international dimension.

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