Averting a potential flight risk – child abduction
The importance of acting quickly
It can be a stressful time when any relationship ends, and the situation is often made more testing when the parting was not amicable and there are children involved the level of mutual trust needed between separated parents with regards to their children can be severely tested. For some people the stress is too much and trust dissolves on both sides; for some, their response is to run away with the children to start a new life in a different country. New government figures show that child abduction has increased by 88% in the last decade; with 500 new cases reported this year.
To be clear, removing a child from the jurisdiction (which is England and Wales, if the child is resident here) without the consent of every person who has parental responsibility for that child, is child abduction - a criminal offence. The situation is different if the person removing the child has a Residence Order in their favour and is going away for less then four weeks, but it is important to be alert to the possible risk as once a child has left the jurisdiction and resides abroad it can be very difficult for the child to be returned.
In many situations where the child cannot be returned to the jurisdiction it can be very difficult for the parent left behind to even have contact with the child. There are a number of countries, mainly European, that have signed up to the 1996 Hague Convention which contains provisions for the co-operation of those Countries in order to protect children; these include child abduction and contact issues. So if the worst happens, it should be easier to have the child returned or at least secure regular contact.
One way to avert a potential flight risk when there is a real concern is to apply to the Court to make the relevant Order. We have recently had two cases where we were successful in obtaining the relevant Orders from the Court.
In the first case our client Mr X had separated from his partner, Miss Y, an EU national, but they have a child together. The trust between the two broke down and Miss Y put Mr X in an increasingly difficult situation by retaining their child’s passport and refusing to surrender this to either parties’ solicitor. Our client became increasingly worried about the situation as Miss Y seemed to be involving her family more and more in the care of their son and excluding him.
One day when he was unable to make contact with Miss Y despite numerous attempts he contacted the police, but they would not place a port alert (a mechanism which will instruct airports and other ports to prevent the child from leaving the country) without the relevant Court Orders. After some tense hours urgently preparing Mr X’s application to Court, we succeeded in obtaining the relevant Orders and he now has the peace of mind that his child will not be leaving the jurisdiction without his consent.
In the second case, our client, a British national, and his wife, a national of the Far East, were in the process of separating; they too have one child together. Whilst he had no particular reason to distrust his wife, her reaction to stress was typically unpredictable and often extreme. She was finding the breakdown of her marriage very stressful, and our client was extremely worried that his wife may react by fleeing the country with their child, as she had threatened previously, and that he would never see his son again. In addition there were serious concerns about our client’s wife’s ability to care for their child.
We were therefore instructed to issue an ex-parte application to prevent the removal of the child from the jurisdiction and also to seek sole residence. The Judge granted the Order and actually went further by preventing the wife from removing the child from the care of our client or anyone to whom he entrusted the care of the child. The Judge also made a final Order for Residence in our client’s favour, which is almost unheard of.
We live in a multi-cultural society in an apparently shrinking world; the benefits for society at large are to be celebrated, but unfortunately there are times when a child’s best interests can only be served by these benefits being put aside. More often than not, urgent intervention by the court to prevent abduction becomes necessary; it’s hardly an ideal scenario for any of the parties involved, particularly the child, but rapid action is the only way to secure the position of a child in these circumstances.
If you require assistance with risk of flight, child abduction or divorce with children involved please contact Sarah Djalili, Solicitor, Family team
To find out more about our expertise dealing with Children in divorce matters
Published: 21 Dec 2012