Returning home to find that your children have been taken and no note left as to their whereabouts is a terrifying situation but you must remain calm. There are a number of options open to you depending on your circumstances; we will assume you have already tried the obvious, such as calling your ex’s mobile. Whatever you do, you must act swiftly.
You must first read Practice Direction 12F which tells you what to do if your child is taken out of the country without your consent and,
· If the country to which your child has been taken (assuming you know) is a part of the Hague Convention and/or the European Convention, you must register the abduction with the International Child Abduction and Contact Unit (ICACU):
International Child Abduction and Contact Unit
81 Chancery Lane
DX 0012 London Chancery Lane
Tel: + 44 (0)20 7911 7045 / 7047
Fax: + 44 (0)20 7911 7248
Outside of normal working hours you should contact the Royal Courts of Justice on:
+ 44 (0)20 7947 6000, or
+ 44 (0) 20 7947 6260
ICACU will forward your application to an experienced solicitor who will take your case on and sort out your legal aid.
· In Hague Convention cases public funding is not means-tested. This makes them one area where you are advised to hire a solicitor; establish first that they have experience of abduction cases and a proven track record. This special status does not apply to defendants. You must seek legal advice immediately, both here, and in the country to which your child has been abducted.
· The relevant court procedure is set out in Chapter 6 of the Family Procedure Rules 2010 which you should read in conjunction with Practice Direction 12F and the Child Abduction and Custody Act 1984. Bear in mind that in Hague Convention proceedings there may be several defendants pursuant to Rule 6.5.
· The application is made using Form C67; your solicitor will fill this out, but you must provide:
a) the children’s names and dates of birth;
b) the parents’ or guardians’ names;
c) the suspected whereabouts of the children;
d) your interest in the matter, i.e. your relationship to the child and details of any Court Order;
e) the reasons for your application;
f) details of any court proceedings (including proceedings not in England or Wales, and including any legal proceedings which have finished) relating to the children;
g) the identity of the person alleged to have removed or retained the child and, if different, the identity of the person with whom the child is thought to be;
h) details of any measures of which you are aware that have been taken by courts or authorities to ensure the protection of the child after its return to the Member State of habitual residence.
· Try to ensure that the proceedings take place in London because this is where you will find the greatest expertise in these cases. Deputy High Court judges and Section 9 judges (these are Circuit Judges authorised to do High Court work under Section 9 of the Supreme Court Act 1981) should not deal with Hague and Brussels II cases.
· The procedure for a location order is as set out above and will be covered by non means-tested public funding.
· Contact the Reunite advice line: 0116 2556 234.
· Ask your local MP to contact the All Party Parliamentary Group on Child Abduction.
Britain is very conscientious about returning children to other Hague Convention signatories; many other countries are not. There is nothing you can do about this: states are not bound in any way by the Convention. There is also profound ignorance about the Convention and about Brussels II amongst lawyers in many states, particularly in those which have only recently joined the EU.
For non-Hague countries, contact the Foreign and Commonwealth Office, Protection Section, Consular Division: 020 7270 1500. Applications for return are made on Form C66 to the Principal Registry of the Family Division and are heard in the High Court.
You can go to the police, but you need to consider what you want them to do, and this will depend on whether you believe your child to be at risk or not. The police can institute the ‘port alert’ system (also known as an ‘all ports warning’) to stop your child being taken out of the country. You must give the police:
a) the child’s name, sex, date of birth, physical description, nationality and passport number;
b) the abductor’s name, age, physical description, nationality, passport number, relationship to the child, and whether the child is likely to assist him or her;
c) your name, relationship to the child, nationality, telephone number and (if appropriate) solicitor's or other legal representative's name and contact details;
d) the likely destination;
e) the likely time of travel and port of embarkation and, if known, details of travel arrangements;
f) the grounds for port alert, i.e.:
i. suspected offence under section 1 or section 2 of the Child Abduction Act 1984;
ii. the child is subject to a Court Order.
g) details of person to whom the child should be returned if intercepted.
If the police find your child, new guidelines following the Victoria Climbié enquiry require that Child Protection Officers should see the child and assess the circumstances before taking them into police protection (this is covered by Section 46 of the Children Act). The police can keep a child in Police Protection for up to 72 hours; they must inform Social Services as soon as possible, and Social Services are then responsible for finding accommodation for the child. The police do not have to tell you where your child is, but they do have to give you the name of the social worker dealing with your case.
You may be able to persuade the social worker that you are the best person with whom your child should stay, or they may apply to the Court for an Emergency Protection Order, followed by a request for a Supervision or Care Order (this is covered by Section 33 of the Children Act).
Whatever happens, always keep the police informed and check that the Court Tipstaff is liaising with them.
If your local police station does not do so, contact Interpol (the police will tell you how) who will help you further to locate your child and advise on how things are handled in the country to which they have been taken. Interpol’s main responsibility in this respect is in apprehending fugitives from justice. They may issue an international arrest warrant which is valid in many countries.
Contact the Passport Office in Peterborough (0207 947 7194) and tell them that there is a court prohibition preventing the issuing of travel documents in respect of your child. Note the following President’s Direction:
President’s Direction on Communication with the Passport Service
Where a request is made of or an order is made against the UK Passport Service, the judge should ask the Court to draw up and immediately to provide a copy of the relevant request or order in a separate document to:
Family Division Lawyer
Royal courts of Justice
Strand, London WC2A 2LL
T: 020 7947 7965
F: 020 7947 7274
The Form EX660 should be completed. It will be used by the Court in the production of the order, and should also be sent to the Family Division Lawyer.
· The request or order should either state or be accompanied by a letter to the Family Division Lawyer stating the following details in respect of all parties about whom they are seeking information:
Ø full name including all middle names;
Ø full date of birth; and
Ø any known passport numbers.
· The Form EX660 should be completed and used by the Court in the production of the order.
· The request or order should state the time by which the information is required, allowing a reasonable period for the Passport Service to investigate and prepare its statement to the court. In the absence of urgent circumstances, a reasonable period shall be four weeks.
· The request or order should identify the information required from the Passport Service.
· The Family Division Lawyer will then send to disclosure of information officers the enquiry, together with a copy of any request or order made. The disclosure of information officer will be responsible for retrieving the information and forwarding this to the Family Division Lawyer.
· The Family Division Lawyer will follow up as required in order to ensure that the information is received by the Court in time, and will receive the statement before forwarding it on as instructed by the judge or court making the request.
The Court Order should be sent with a covering letter to:
The Caveat Officer
Fraud and Intelligence Unit
Identity and Passport Service
89 Eccleston Square
London SW1V 1PN
Your best chance of return is if the child has been taken to a Brussels II country; jurisdiction remains with the country from which the child was taken and it can issue an order for mandatory return.
If the country to which your children have been abducted is covered by the Hague Convention there is about a 7% chance that the Court will order return, though this is no guarantee return will actually happen.
Around 40% of cases involve abduction to non-Hague Convention countries, which makes recovery even more difficult. There are some countries, such as Japan, from which no child has ever been returned. Mothers, in particular, will find it almost impossible to recover children taken to Islamic countries in which sharia law prioritises the rights of fathers over those of mothers.
Because Scotland operates under a different jurisdiction from England and Wales, removal of a child to Scotland should constitute ‘removal from the jurisdiction’, but because the European authors of the Hague Convention on child abduction didn’t actually realise that Scotland was a separate jurisdiction removal of a child from Scotland is not abduction.
In England and Wales there does not need to be a residence order in place to qualify as abduction, but there does in Scotland if the child is resident in or was abducted from Scotland.
Where there is no order in place an adult with Parental Responsibility (PR) may take a child to another country for up to 28 days without the consent of the other adults with PR.
If a mother abducts her child the courts often look very leniently on the case. There will be a tendency to assume that the mother abducted the child ‘for a good reason’. If a father abducts his child he will be dealt with very much more severely and may well be given a prison sentence.