In abduction/wrongful removal cases it is important to act quickly. Evidence will need to be filed within weeks/days and therefore you should collate any useful material that the relevant authorities are likely to need, such as:
- Recent photographs;
- Any ongoing medical conditions, for which treatment is required;
- Passport details (if known);
- Details of any known travel plans;
- Contact details for any friends and family that may be able to provide details of the location of the child(ren).
The courts are required to make a decision within six weeks of the commencement of proceedings.
Retained Outside of the UK
If the child(ren) is being retained in a country that is part of the 1980 Hague Convention, an application will need to be made to request the return of the child(ren). Where the child(ren) is being retained outside of the UK it may be possible to pursue extradition of the offender from the relevant country and therefore you should contact the police.
It will be important to apply, if the location of the child(ren) is unknown/uncertain, for a location order and disclosure order against any person/relevant body that may be able to assist in locating the child(ren). Once the child(ren) has been located, the court will give directions, ordering the abducting parent to set out their defence.
It may also be necessary to apply for declaratory and other orders at the High Court, in particular a declaration that the child is habitually resident in England and Wales.
British Overseas Territories
It is important to note that the 1980 Hague Convention does not apply between the UK and British Overseas Territories. For example, Bermuda is not included as a contracting state, because British Overseas Territories are treated as part of the UK. However, there is no automatic statutory recognition of orders between the UK and its overseas territories under the 1980 Hague Convention.
Retained Inside the UK
If the child(ren) is being retained in the UK, the High Court applications that may be necessary to make are:
- Wardship, location or collection orders;
- Disclosure orders against third parties; or
- Any other orders under the inherent jurisdiction to assist in finding and recovering the child(ren).
Court’s Approach
At any directions hearing, the court are likely to have the Children and Family Court Advisory and Support Service (CAFCASS) be involved. Their report will deal with issues such as:
- The child(ren)’s views in respect of returning to the country of habitual residence;
- Whether the child(ren) object to returning to the country of habitual residence;
- The child(ren)’s maturity;
- The 1980 Hague Convention and
- Settlement.
The court will rule on matters of substance and practice. The guiding factor for the court will be the child(ren)’s best interest, however it is not their primary concern.
If you believe your child is at risk of being abducted, or has been, you should immediately seek specialist legal advice.
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice. The content of this article contains general information and may not reflect current legal developments, verdicts or settlements.