Preventing child abduction

Family Law|December 8th 2014

Cases with an international element continue to appear regularly in the family law reports. Last week I wrote about what I called the saddest type of such cases: those involving one parent moving a child from their home country without the consent of the other parent, i.e. child abduction. Another example cropped up at the end of the week, albeit from the angle of the prevention of possible abduction, rather than dealing with the consequences of an abduction that has actually taken place.

In C v K the problem was that nightmare of so many parents: the possible abduction of the children to a country from where the local court may not support a return of the children to this country. As regular readers of this blog will know, there are international treaties that deal with child abduction, in particular the 1980 Hague Convention and, somewhat confusingly, the 1996 Hague Convention.

The 1980 Convention requires, in most cases, that abducted children are promptly returned to their home country. This means that the local court of the country to which the child is abducted will usually order that the child be returned. The 1996 Convention provides, amongst other things, for the recognition and enforcement of court decisions relating to a child taken in one contracting state by all other contracting states. Thus, a decision about an abducted child made in its home country should be enforced by the court of the country to which the child has been taken.

However, the Conventions of course only apply to countries that are signed up to them. C v K concerned a country that is not a signatory: Algeria.

The facts in C v K were that the parents were both Algerian by birth. They married there, but moved to England shortly after the marriage. They have two children, aged five and three. The marriage broke down and the parties separated in December 2011. The children remained with the mother, in Bradford.

The father became fearful that the mother intended to remove the children to Algeria and he therefore issued an application for a prohibited steps order restraining her from removing the children from the jurisdiction. The court made the order as requested, in June 2012.

In March 2013 the mother applied to discharge the prohibited steps order, so that she could travel to Algeria with the children. The application eventually went before Mr Justice Cobb in the High Court last week.

Mr Justice Cobb found that, shortly after the separation, the mother had threatened to remove the children permanently to Algeria, and that threat was heightened by the mother’s actions in issuing divorce proceedings in Algeria rather than this country. Further to this, expert evidence indicated that the Algerian courts were unlikely to require the mother to return the children to England or enforce any order made by the English courts.

In the circumstances Mr Justice Cobb was satisfied that it was not in the interests of the children to discharge the prohibited steps order. He said:

“There is, in my judgment a clear and identifiable risk that any order for the children’s return would be breached; I am not satisfied that the mother has been candid with the court on issues of importance to my deliberation. I consider that if the mother were to go to Algeria, even with the intent of returning but change (or be persuaded to change) her mind, then the consequences for the children would be grave; they would be effectively dislocated from all that they have known, deracinated from their homes in Bradford, and put beyond the effective reach of the father.”

The safeguards that had been discussed, such as the mother undertaking to return the children and offering £4,000 security, were ineffective to mitigate those risks. Accordingly, the mother’s application was refused.

Photo of the Algerian flag by Ming Xia via Flickr

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