Marisa Cullen: Child abuction cases are complex and harrowing

Court proceedings can be speedy but jurisdictional issues can be awkward, writes Marisa Cullen

Marisa Cullen

When someone uses the phrase “child abduction” it often conjures up images of children being kidnapped in the dead of night or the idea of “stranger danger”. In reality, it affects many otherwise ordinary families living and working abroad.

If you are unlucky enough to become embroiled in an international child dispute then your hope is that the countries involved are governed by the Convention on the Civil Aspects of International Child Abduction, or the “1980 Hague Convention”. It can cover the situation where your child is taken from Scotland to another country without your consent. It can also cover where you have separated from your child’s parent, who now lives in another country, your child is having contact with them and fails to return them to you.

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Only certain countries are signatories to the Convention and even then checks have to be made that the country your child has been abducted to will apply the Convention.

There are swift court proceedings that come in to play as soon as an emergency like this happens. They are speedy and decisive but there are certain defences that can be put forward to halt a child’s return.

Does this really happen in Scotland? Yes. In 2015, 41 child abductions were processed by the Scottish Central Authority (up from 29 in 2014), with 44 per cent of applications received in the last quarter of the year. This is presumably due to children being kept after school summer holiday contact and not returned to their resident parent.

The purpose of the 1980 Convention is clearly stated in Article 1 (a):

The objects of the present Convention are a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; Given such an emphatic opening, can child abductions be defended?

Defences are available under the 1980 Convention, ranging from the child not wanting to return to their home country to the child being placed in an intolerable situation should they be returned due to issues of extreme poverty or abuse. Historically, it has been extremely difficult for defenders of child abduction cases to be successful. Even if there are issues, as long as it can be shown the country to where the children are being returned has appropriate safeguards in place, then a return would still be ordered. There is now a lean towards looking more at the financial reality of what a child would be facing upon return. The English courts have looked for this for some time and the Scottish courts are following suit.

An example can be found in a 2015 child abduction case, where a New Zealand father had raised a child abduction action seeking the return of his child to New Zealand following the mother bringing the child to Scotland without the father’s consent or the consent of the New Zealand Court. On the face of it this was a child adduction and the judge ultimately agreed the mother had wrongfully removed the child from New Zealand. However, the mother was able to argue the child would be put in an intolerable financial situation upon return.

She was able to show that neither she nor the child were New Zealand citizens, she had limited or no access to accommodation, state benefits and health care and her immigration status when in New Zealand was at best unknown. The father failed to provide adequate undertakings to the court that he would alleviate the financial hardship so the court refused to return the child to New Zealand.

The point of the Convention is to return children to their home country (their country of habitual residence) so that the courts there can decide what is in their best interests. If you wish to relocate with your child to another country you should obtain the written consent of the child’s other parent before doing so.

If you cannot obtain that consent, your normal recourse would be to ask the court where your child lives to override that consent and allow you to move. If you do not take either of these steps and relocate anyway, you may face the very real prospect of being forced to return your child under this Convention.

• Marisa Cullen is an associate in the family law team at Morton Fraser