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David Hodson on International Family Law: Child abduction as criminal kidnapping
Sep 29, 2018, 21:29 PM
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Mar 8, 2012, 13:25 PM
Article ID :98013
In the recent R v Kayani, R v Sollimandecision  EWCA Crim 2871, the Court of Appeal has called upon the Law Commission to address the question of whether parental child abduction cases should be treated as kidnapping offences. The court further recommended that, pending any such change to legislation, the maximum sentence for child abduction cases should be increased. Currently the offence carries a sentence length of seven years' imprisonment under the Child Abduction Act 1984; however, if the substantive law is changed in this regard, perpetrators of child abduction could potentially face life imprisonment -as is the maximum sentence in kidnapping cases.
The Lord Chief Justice in his reserved judgment held that a parent abducting a child is at its most serious akin to kidnapping and has thus requested the Law Commission to consider whether child abductors should be charged with the offence of kidnapping. It had previously been held in R v C  2 FLR 252 that in cases where a child has been removed by one parent from the other, it would be against public policy for that parent to be charged with the offence. However this approach now appears to be superseded and Lord Judge has said that a charge of kidnapping will not always be inappropriate for policy reasons. It was also held that grave cases of child abduction might merit a custodial sentence greater than the current maximum sentence of seven years' imprisonment. The increase was considered to be necessary in order to reflect the culpability of the offender and the harm arising from the offence.
The court examined these issues in R v Kayani, R v Solliman; two separate cases in which fathers, Kayani and Solliman, appealed their sentences of 10 years and 9 years imprisonment respectively for committing child abduction. Kayani was sentenced to concurrent terms of 5 years' imprisonment on two counts of child abduction and Solliman to 3 concurrent terms of 3 years' on three counts of child abduction. The Criminal Division of the Court of Appeal dismissed both appeals, ruling that their sentences were not manifestly excessive and were proportionate to the offences they had committed.
The significance of this judgment is that it suggests that the law may soon be changed to allow a parent child abductor to be guilty of the common law offence of kidnapping. Furthermore, the Lordships' view that custodial sentences for offences contrary to the Child Abduction Act 1984 ought to be increased, indicates that in the future sentences may be far more severe.
Whether this opinion is unanimous across specialist family lawyers undertaking child abduction work is another matter. The incidence is increasing of criminal proceedings awaiting the parent who has allegedly abducted the child on the return to the country of the child's habitual residence. Whilst safe harbour orders can be put in place, these are first only civil and secondly can be fraught with problems if there is a very different system of law in the country to which the child and parent are being returned. Moreover if England is increasing the severity of sentencing for child abduction, other countries with perhaps less liberal regimes might increase the severity even more. Yet in the appropriate case, child abduction is one of the worst events which can occur in the child's life. Societies need to make appropriate and fitting condemnation in the best interests of the child. The debate will continue but it is now in sharper focus following this judgement and the remarks by this influential court.
I am very grateful for the research of Julia Schtulman, paralegal at The International Family Law Group LLP.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.