The distinction between child abduction and parental relocation with a child abroad is important to understand if you are considering taking your child for an extended holiday or to live abroad. You do not want to place yourself in a position whereby you inadvertently abduct your own child. The key issue is consent and we look at the different approaches in this article.
What is child abduction in UK law?
Whilst this is a complex legal area, the Child Abduction Act 1984 creates the criminal offence of child abduction. A parent, or the person with care of the child, commits an offence if they take or send a child under the age of 16 out of the UK without one of the following:
- The consent of all people with parental responsibility;
- The consent of the people with custody of the child; or
- The permission of the Court.
In reality, child abduction usually arises in one of two ways:
- Taking the child abroad without the permission of the other parent (and anyone else with parental responsibility) – this is ‘wrongful removal’.
- If you had permission to take a child abroad for a period of time, for example a holiday, but then retained the child abroad at the end of the agreed period – this is ‘wrongful retention’. Wrongful retention is not treated as a criminal offence in the UK.
There is no offence of child abduction committed if you relocate within the UK with your child, however a unilateral decision to do so (despite the other parent objecting to the move) will often be viewed dimly by any Court in subsequent proceedings.
The international legal framework which applies to this area of law is the 1980 Hague Convention. This is a worldwide agreement which has been entered into by over 100 countries. The aim of the Convention is to secure the fast return of abducted children to the country from which they have been removed.
If your child has been abducted to a country which has not signed up to the Hague Convention, it can be more difficult to secure their return as the country they have been taken to may not co-operate. Specialist and experienced legal advice and representation will be required and must be sought quickly, particularly in these situations.
If you are fearful that your child may be taken abroad by the other parent, you can take a number of steps to minimise the risk. These steps should be discussed with a specialist lawyer. Prevention is better than cure.
These could include:
- Making sure you or someone known to your child always collects them from school;
- Tell your child’s school and others about your concerns regarding an abduction so that they are on alert;
- Have to hand a detailed list of information concerning your child – for example a copy of their passport and birth certificate;
- Keep your child’s passport in a safe and secure place;
- Consider requesting possession of the other parent’s passport during contact;
- Obtain a long-term prohibited steps order from the Court to prevent the child being taken out of England and Wales.
What is parental relocation?
Parental international relocation can be explained as the wish for one parent to move, with their child, to another country for a period of time, or indefinitely.
We have found that the issue of international relocation often arises in the following circumstances:
- In the case of international families upon parental separation, when one parent has come from another country and wishes to return, perhaps to be closer to family or to restart employment, and wishes to take their child with them.
- Following separation when the resident parent has a good opportunity to seek employment abroad which, for example, could have a positive impact on the living standards for the parent and child.
- Following separation if one parent has met a new partner and wishes to move to the new partner’s country with the child.
The inevitable consequence of the proposed relocation is that the parent being left behind will likely have drastically reduced opportunities for contact with the child and often a more limited impact on their education and upbringing.
A concern that we often hear from the parent who will be left behind relates to the impact upon their relationship with their child, along with the relationship between their extended family and the child.
Key differences between abduction and Relocation
The key difference between an unlawful removal (child abduction) and a lawful relocation is consent.
In order to relocate abroad lawfully, you must obtain the permission of the other parent and anyone else with parental responsibility before you take the child abroad permanently. If you do not obtain consent, you are likely to find that the other parent issues child abduction proceedings (which may be civil and/or criminal).
If the other parent is not willing to give permission for the relocation, you must obtain permission from the Court.
The intentions of each parent (both the parent wishing to relocate and the parent being left behind) will be considered by the Court. If the parent wishing to relocate is doing so only to prevent the other parent from having contact, the Court is unlikely to look favourably upon this. Likewise, if the parent being left behind is refusing to give consent to the relocation purely to create difficulties for the parent wishing to relocate, this will not be viewed favourably by the Court either.
The paramount consideration for the Court is what is in the best interests of the child.
What the Court considers in relocation cases
In order to succeed in an application to relocate to another country with your child, you must show to the Court that you have carefully considered the move and that the relocation is in the best interests of your child – this is the same test as for any internal relocation.
In your application, you must set out contact proposals for the other parent, the schooling arrangements for the child, show you have found a suitable home where you could live and a plan for how you will manage financially.
In looking at proposals for contact with the parent left behind, the Court will expect to see a generous, child focussed offer, sometimes including the costs of travel and potentially the making of an order for contact in the other country (this is sometimes known as a “mirror order”). Proposals for contact could include virtual communication, for example via Zoom.
A successful application to relocate with a child will depend on thorough preparation and careful planning of both the proposed move and of the application for permission. It is therefore vital to seek legal advice at an early stage.
The decision of the Court whether to refuse or allow a relocation is often finely balanced, with a binary outcome which will no doubt cause great emotional turmoil to one parent.
Regional perspective: supporting families in Cornwall, Devon, and Somerset
We have many international families residing in the South West – we have specialist universities, hospitals and scientific research facilities which attract international families. The South West is also a stunning location and, particularly following 2020 and lockdown, there has been a migration of families to the South West who have links with the wider country and internationally. We give targeted specialist advice as to how to progress an application.
The cases we see are varied and we assist those parents seeking to relocate but also those parents who may be subject to an application when they have relocated without the other parent’s permission or the court’s permission.
In international matters we can and frequently do link in with other international experts to assist on relocation and jurisdictional issues. Such an approach enables us to give the best possible advice to our clients.
How to get help quickly
If your children have been taken and relocated – either within the UK and especially if abroad, it is important that you act quickly to ensure their return. It is essential that you seek immediate legal advice in those circumstances.
If you do not necessarily seek the return of your child but wish to establish contact, it is also advisable to act quickly and seek legal advice.
If you are looking to relocate and the other parent is not agreeable or if there is a proposal to relocate made by the other parent which you do not agree with, it is important to seek early advice in order to ensure that you know the options available to you. Mistakes can sometimes be made at an early stage which can have far-reaching consequences later on.
It is important to remember that seeking legal advice in this situation does not always mean going to Court.
The specialist Children team at Stephens Scown are experienced in guiding parents through these complex situations. Or if you would like to know more please contact us on 0345 540 5558.