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Practical Case Management of Child Abduction Cases

Clare Renton provides practical tips on how to handle child abduction cases

Clare Renton, Barrister, 29 Bedford Row

Miscellaneous practical issues confront practitioners in those disputes about children where there is a risk of child abduction, or where it has already occurred. Limitations of space mean that this article is not comprehensive but it is hoped that practitioners will find this overview of some help in managing these cases which may present traps for the unwary.

The key statutory provisions are to be found in:

The principal rules which are relevant to such cases are:

Systems
Where children are abducted to or abducted from England or Wales the system which will govern the determination of any dispute as to whether the child should be returned depends upon:

(I) Where the other State is part of the EU and a signatory to the Hague Convention then Brussels II revised applies with special modifications to Hague Convention Law See FPR 1991 rules 6 and 7.

(II) Where the other State is not within the EU but is a signatory to the Hague Convention, the Hague Convention applies.

(III) Non-Convention or EU cases under the inherent jurisdiction welfare principles are applied to the question as to whether the child should be returned. Wardship is flexible in concept and practice in this area. FPR 1991 rule 5 sets out the relevant procedure.

Accepting the case
Ensure that you are familiar with the Law Society Guidance on Child Abduction. Do not accept the case unless you have both the resources to act quickly and, of course, the appropriate expertise. One solicitor who had been too slow off the mark was ordered to pay damages to enable the mother to go and fight for the return of her child from Morocco. To be accessible to your client and the Tipstaff you really need to give them contact details including your mobile telephone number so that they can reach you whenever they need to – including weekends.

Taking instructions
In most cases one to two hours is needed to take instructions. At the end of that time you should have a strategy on how to proceed.
The following is a non-exhaustive checklist of information to obtain and points to cover at the initial meeting with your client. If a case has come through the Central Authority in an incoming case then much of this information will have been covered already:

(i) Name, address d.o.b. of child, parents and all those with parental responsibility
(ii) History of where child has lived and how your client came to be here.
(iii) Discuss where the child might be taken if abduction does occur
(iv) Obtain details of threats to abduct have been made and the circumstances in which they were made
(v) Mobile and landline phone numbers of where child is /might be
(vi) Details of what court orders exist and/or are in process of being sought here or elsewhere ( see below : this is important )
(vii) Find out what passports there are for the child and the relevant adults and where they are kept.
(viii) If imminent flight is a real concern then ascertain what airline and flight is planned if possible. A Port Alert is, in practice, ineffective unless you can give the police full details of the likely flight and airline
(ix) Briefly discuss welfare issues. Remember that child abduction law is less about welfare than forum and that the Hague Article 13 Defence is very hard to establish
(x) Take details of the likely address of the abductor in England and, where relevant, elsewhere
(xi) Obtain names and addresses etc of the likely abductor's close relatives
(xii) If the whereabouts of the child are not known then ask for the abductor's bank account details
(xiii) Ascertain whether proceedings are on foot outside the jurisdiction and if so obtain as much detail as possible including details of the lawyers abroad who are acting. Speak to the foreign lawyers as soon as possible to find out precisely what is going on but it is necessary to be particularly circumspect. If proceedings are pending elsewhere your client may not be entitled to pursue the matter before an English court at all and may find herself subject to an English order to return to the place of the child's habitual residence. It is even possible that she may be exposed to prosecution for child abduction. See Zaffino v Zaffino [2006] 1 FLR 410
(xiv) Consider whether you are going to need the help of a foreign lawyer. REUNITE will provide by telephone names from a good updated database (xv) Consider whether this is a Brussels II case a Hague case, or none of the above
(xvi) Consider the location options below if the child has gone missing

Prevention is better than cure
The REUNITE pack may be downloaded from the internet.

Self-help
Certain types of self help are legitimate to prevent abduction for a few days. If a client has a reasonable fear that abduction may occur you can properly advise the client that he or she may often:

Court
Consider applying under the Children Act 1989 in any court for:

Commencing Proceedings: Procedure
The relevant procedure is set out in The Family Proceedings Rules 1991 Part VI 5-7.which should be read in conjunction with the Child Abduction and Custody Act 1985. Solicitors need to keep the rules constantly in mind. For example, remember that in Hague Convention proceedings there may be several Defendants pursuant to Rule 6.5.

Venue
Issue with a view to the proceedings taking place in London unless you are sure that the Plaintiff will not be prejudiced by a lack of a number of expert High Court Judges outside London. Deputy High Court Judges and section 9 Judges should not deal with Hague and Brussels II cases.

The Forms
It is permissible to "hybridise" an Originating Summons so as to seek relief in the alternative under the Hague jurisdiction and the Inherent jurisdiction. In a Hague incoming case where you have the advantage of non merits or means tested public funding this can be useful if it transpires that there is a technical problem with proceeding under the Hague jurisdiction.

Central Authority
The Central Authority for England and Wales Child Abduction Unit provides a referral service for "left behind" Plaintiffs both in England and abroad. The telephone number is (0207) 911 7047. An incoming Hague case may or may not have come to you via the Central authority. If not, the C.A.U. is still a useful resource. The Central Authority in each Hague Convention signatory state is under an obligation to advise and assist on issues of international and domestic law. The staff will guide you to the contact details of a foreign Central Authority who in turn will help you find suitable foreign lawyers.

A State by State approach
The Guide to Good Practice under the Hague Convention published 2003 (Family Law) explains the desirable practice for each signatory state. A number of States seem to have an inbuilt resistance to the notion of return. Delays in Germany are a problem. The author is aware of four cases from Poland where Hague "return" orders have been refused and application will be made under Brussels II in England requiring return pursuant to BIIR Article 11.

Public Funding
Non-means tested public funding is available to Plaintiffs in Hague cases. Solicitors have an obligation to inform a Plaintiff client of this privileged status, which does not apply to Defendants and does not apply in Brussels II enforcement cases unless the Plaintiff has been publicly funded in the requesting state. There is no obligation to provide public funding to enforce or register orders under Brussels 11 revised, unless the party was publicly funded in State A. When there is an outgoing Non Hague case e.g. under the Pakistan protocol then funding will be both means and merits tested, it is difficult to get public funding. The author is informed that you will often be told that if the child has gone there is nothing to be done in England. Persist!

Contact and mediation
Many Hague applications are an anguished plea for contact by the left behind parent. Remind Plaintiff clients that if they succeed in procuring the return of the child the abducting parent may well make a successful application for leave to remove back to England, so that the Hague return order will merely have prolonged the agony. Advise Defendant clients that if they offer enough contact the Plaintiff may withdraw his Hague application. If parents can reach an accommodation then it is usually in everyone's interests. It is the realisation of this aspect that has given clients the incentive to mediate or agree generous contact to the left behind parent which in at least two cases this year in which the author has been involved led the Plaintiff to abandon his case for return.

Finding a child removed abroad
Get in touch with the Central Authority in a Hague case and the Foreign and Commonwealth Office ("F.C.O.) Tel (0207) 7008 0878 (www. fco.gov.uk) in a non-Hague non-Brussels II case. Interpol will help. Your client will need a foreign lawyer in the other country. There have been some notable successes in recovering children from India with the help of the F.C.O.

International liaison judge
Lord Justice Thorpe is proactive approach in liaising with Foreign Judges to assist in establishing where and when the matter can go before the foreign court in the event a child is returned.

Danger of imminent flight
You may seek an order without notice by telephone from the Duty Judge. The Judge will not grant the order unless you have your tackle in order. Give an undertaking to issue proceedings on the next working day. You need full instructions for your statement and the summons so as to inform the Judge as to exactly why your case is so urgent that it cannot wait.

Child has disappeared
If a child has disappeared a "seek and locate" order may be needed. This is available in the High Court from the Tipstaff.

Tipstaff
If the assistance of the Tipstaff is required telephone him -and explain that you will be applying to the Duty Judge. Contact the local police and keep them informed. The Tipstaff will liaise with local police when you have the order which he will execute. A "seek and locate and passport delivery" order is directed to the Tipstaff. It will be drawn up by the Tipstaff and executed by them before service on the Defendant abductor of the Plaintiff's summons or without notice orders. Some High Court Judges will include in a "Tipstaff order" a direction that the Defendant is to attend court on a particular day at the High Court, to correspond with the day specified in the "without notice order" which the process server will serve. Stress to your client on no account to tip off the abductor!. The -order without notice will include a prohibition upon disclosing the fact of the proceedings to the Defendant again to avoid tipping off. The Tipstaff will take as many details as possible from the Plaintiff and cooperate with the police to try and track the child down. The Tipstaff order can only be as as useful as the information which is available.

The Order without notice
The order will be tailored to the particular circumstances of each case but in many cases it will include the following provisions:

UPON THE UNDERTAKING of the Plaintiff to issue the Summons annexed hereto within 24 hours

AND UPON RECEIVING the affidavit of the Plaintiff's solicitor dated …..

And at the time of making this order UPON GIVING directions to the Tipstaff of the High Court of Justice to locate the said child and obtain the passport and travel documents of the -Defendant and the said child until further direction of the court to keep safely the documents referred to in paragraph (6) of this order

UPON HEARING Counsel for the Plaintiff the Mother being neither present nor represented;

  1. This matter be restored before a Judge of the Family Division sitting at the Royal Courts of Justice, Strand, London WC2A 2LL on …..at 10.30 am
  2. The Defendant shall attend the hearing provided for in paragraph (1) of this order in person as well as, if so advised, by counsel and solicitors;
  3. The Defendant shall file a defence to this application within 7 days of service upon her of this order and the originating summons herein
  4. The Defendant is in the interim prohibited until further Order from removing the child from England and Wales or removing her overnight from the place where she currently resides.
  5. The Defendant is in the interim prohibited from applying for passports and travel documents for the children or himself until further Order.
  6. Costs in the Application.

The Statement
The statement by the solicitor must set out succinctly those facts upon which your client relies. The Central Authority referral document should be exhibited. See F.P.R. 1991 rules 5 and 6.

Service
Having obtained the "Without notice" order arrange for a process server to serve the Originating Summons and papers as soon as possible after the Tipstaff has confirmed that he has executed his order.

Interpol
The Interpol unit is proactive and helpful and will help you find out about local police practice where the child has been removed from England. For example, in France the police will, if an order is made by a foreign court assist readily in tracing the child. An international arrest warrant may be issued. Abduction is a crime in many countries.

Passport Office
If an order has been made that a parent do deliver up passports and not apply for another for herself or the child, contact the Passport office at Peterborough (Telephone 0207 947 7194) stating that there is a court prohibition upon reissuing travel documents. see the Practice Direction of August 2003 with regard to communicating with the Passport office.

Foreign Passport Offices
There have been cases where a party has gone to the London consulate of a foreign embassy and persuaded them to issue a new passport for that party and the child in breach of court order. It is worth writing to a London foreign consulate to notify them of the situation but there is no guarantee that this will be effective.

The worldwide web
Ask our friend Mr Google for help. You will be surprised what you come with on the web nowadays.

Location orders
The Child Abduction and Custody Act 1985 section 5 and the Inherent jurisdiction may be invoked to trace an abducted child. See FPR 1991 rule 6.13. A raft of location orders are available to assist in finding the child.

As interim measures the High Court will make orders dealing with the following:

The First Interpartes hearing
Common directions are:

  1. The Defendant shall file a Defence on or before ..(7 days)
  2. The Defendant shall file an affidavit in reply to the affidavit of the Plaintiff setting forth the defence to this application on or before ..(7 days)
  3. The Plaintiff shall have leave to file an affidavit in reply on or before (14 days?)…….
  4. This matter shall be set down for hearing listed at risk on …… 10.30.am time estimate 2 ½ hours
  5. The Defendant is in the interim prohibited until further Order from removing the child H from England and Wales overnight from the place where she currently resides at
  6. The Defendant is in the interim prohibited from applying for passports and travel documents for the said child or herself until further Order.
  7. Contact …….
  8. Costs in the Application

Protective Measures
Under Brussels II revised, if an application is made under the Hague Convention in respect of a child in England whether or not a child is habitually resident, Article 20 provides that the requested state may take protective measures. The scope of this permission will be tested through the Courts. It must include interlocutory measures of the sort described elsewhere. A return order may not be refused if the risk of harm on return can be ameliorated by safeguards to take effect on his return to country A (Article 11 (4)). A return order may not be refused unless the left behind parent is given an opportunity to be heard (Article 11 (5)).

Action in England by the left behind parent
Article 16 of the Hague Convention provides that an application may be made for a declaration of wrongful removal. In H v M [2005] EWCA 976, Guidance was given as to the appropriate circumstances in which to request a determination pursuant to Article 15. In general the application for a declaration of wrongful removal in England is discouraged. You may seek location orders to track down the child abroad as set forth above. The application for a declaration of wrongful removal is a proper peg upon which to hang a non means merit tested Hague application, but in practice it may be difficult to obtain public funding on this basis.

Expert Evidence
Directions at the first hearing will include a direction as set forth above that the Defendant plead points of Defence. (Re W [1995] 1 FLR 878 ) This will make you aware of the ambit of dispute. At that stage you may need to find a suitable foreign expert. A Joint single expert may be instructed initially. The Court will decide on the basis of expert evidence what rights, for example, the Plaintiff had under foreign law and whether those rights amount to rights of custody for the purposes of the Convention. In most cases a foreign expert is not necessary. The English decision as to whether for example a wrongful removal occurred is dependant upon the law of the foreign state as interpreted by the English courts in accordance with our domestic law. An important decision on the issue of what amounts to wrongful removal is expected in November 2006 to from the House of Lords in November in the case of Re D.

Costs
In EC-L v DM (Child Abduction: Costs) [2005] FLR 772 Ryder J decided that costs could and should be awarded in certain child abduction cases where an unmeritorious Plaintiff had pursued proceedings. The Court had to construe The Hague Convention Article 26 so as to ensure that the parties were broadly on an equal footing. There was no basis on which the Court's discretion should only be exercised when a funded party's lawyer had acted improperly. Unreasonable conduct should include deliberate and persistent falsification of a case in an attempt to deprive the child and the other parent of their rights.

Pakistan Protocol
The Protocol is based simply on the concept that disputes relating to children should be heard in the country of their habitual residence before they were removed from Pakistan to England or vice versa. Kashmir is not within the Pakistani Protocol nor is some of the Territory. The F.C.O will offer helpful guidance in such cases. An order is made within wardship in the English court requesting the Court in Pakistan to order the return of the child to England.

Other Countries
There are negotiations afoot with India. There is a protocol with Egypt. There have been some real successes (with the help of the F.C.O) in relation to child abduction cases involving India.

Voice of the child
Intra EU when considering Articles 12 and 13 of the Hague Convention the Court must ensure that the child has been heard subject to his age and maturity (Brussels 11 revised (Article 11). There is no uniformity throughout the EU on what is sufficient. In Germany the Judge will always see the child. The French never do. In England the Judges continue to regard a CAFCASS interview as H.R.A. compliant-at least for the time being. Despite the peremptory nature of Hague proceedings, if the defence of "settlement after one year" pursuant to Article 12 is raised or the Defence is raised under Article 13 that the child objects to return, seek a direction that the CAFCASS officer see the child and report to the Judge. The report is usually expedited and limited in scope, following an interview on the morning of the hearing.

For the principles where a child has been in England for more than one year see Cannon v Cannon [2005] 1 FLR 952 C v C [2005] 1 FLR 938 where Kirkwood J set out the principles to be applied in considering whether the child is so "settled2 within the meaning of the Convention that the discretion to order the child's return will be refused. Kirkwood J emphasised that the arrangements for the child on return should be scrutinised by the Court in considering whether to order the return. These arrangements include schooling, housing, support and relationships. Such cases are not unusual because often the left behind parent has been wrongly advised that they can do nothing. Ignorance of the Hague Convention is a problem 20 years on!

Separate Representation of the child
In a few cases the child will be separately represented. See H (A Child) [2006] EWCA Civ 1247 where the Court of Appeal decided that separate representation is not appropriate except in exceptional cases.

Timing
Adjournment of proceedings in Hague cases should not be for more than 21 days ( FPR 1991 rule 6.10) but in practice, this rule is honoured in the breach. In Brussels II cases the Court is required to deal with the case expeditiously usually within 6 weeks (Article 11(3)). That this time must be adhered to has been stressed by the Court of Appeal.

Oral Evidence
Most cases are dealt with without oral evidence. A party seeking to adduce oral evidence to resolve an important issue of fact still faces an uphill task because of the delays which ensue by extending the court time needed. In Re H the Court of Appeal per Thorpe J questioned whether Brussels II Abduction cases should ever be determined on the basis of oral evidence. Astute practitioners on the basis of written evidence can nearly always extrapolate relevant factors pointing to or against an immediate order for return under the relevant criteria.

Undertakings and orders to protect the child upon return
It has become common for undertakings to be required from, or orders to be made against a Plaintiff as a prerequisite to a return order in order to protect the returning child and parent for a short period before the matter comes before the foreign court. Acting for a Plaintiff you must expect to be pressed by the Judge to have instructions on the relevant points. You will be pressed, for example, on how long it will take to obtain a hearing date in the foreign court if the child returns with the abducting parent, and how litigation there will be funded. Acting for a Defendant you need to focus on what your client needs if he or she is to return with the child, a home, money freedom from prosecution for abduction.

Failure to comply with conditions or undertakings made by the English judge is a reason for refusal of enforcement of the return order. (Re W 22.6.05 CA Times 13th July).

What to do when the child has been returned to England
When a child has been returned following the order of a foreign court one party or another will have commenced proceedings in England to regulate the situation. The child may well be a Ward of Court and the case will be proceeding at High Court level. Consider whether the case should henceforth proceed as an ordinary Children Act dispute and, if so, at what level.

I set out below a possible specimen order for an interpartes hearing in England following the child's return :-

UPON both the Plaintiff and -Defendant both undertaking (other than by prior joint written agreement lodged with their Solicitors) not to remove the child M from the jurisdiction of England & Wales and b) not to permit him to reside other than at ….. Road, . or Street until further order of the Court

IT IS ORDERED THAT:

  1. The Wardship herein is hereby discharged;
  2. This matter shall be transferred forthwith from the High Court to the County Court and proceed under the Children Act 1989;
  3. The Plaintiff and -Defendant shall forthwith deliver up their respective passports to their current Solicitors who shall hold them to the Order of the Court pending conclusion of these proceedings;
  4. The passport of the child shall be held by Messrs ABC solicitors to the Order of the Court pending conclusion of these proceedings or further order;
  5. The parties shall file statements by 4pm on (14 days) limited to the question of their future plans for care and contact;
  6. The CAFCASS Officer is requested to report upon the issues of residence and contact by 4pm on (14 weeks 2007) and is to attend the final hearing of this matter unless advised no less than 7 days in advance of the hearing by both the Plaintiff's and Defendant's Solicitors in writing;
  7. This matter is to be listed before a Circuit Judge for PTR with a time estimate of one hour on the First available date in the week commencing …… and for final hearing T.E. 2-3 days on a date to be fixed by Counsel's clerks;
  8. Pending final hearing the child .. shall reside at …..
  9. Contact …….

Contact Outside the Jurisdiction
If contact outside the jurisdiction is an issue post return the terms may be difficult. In a case involving an Eastern European father whose children were eventually permitted to stay in England it was necessary to ascertain what safeguards if any could be put in place Lord Justice Thorpe acting as international liaison judge was approached and found a local judge to assist the Court, on important points such as whether the order that the child be returned will be respected.

Miscellaneous Hot Topics
Among the current topical issues are:

Conclusion
All the signs tend towards: an increase in international litigation affecting children and the need for Judicial guidance on the application of the evolving law and new regulation. Watch this space!

CLARE RENTON
29 Bedford Row
London WC1R 4HE
crenton@29bedfordrow.co.uk