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Michael Allum: The Duty to Spot Potential Cases of International Child Abduction
Sep 29, 2018, 18:13 PM
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Jun 8, 2012, 08:21 AM
Article ID :99057
With my days studying for the Legal Practice Course still fresh in my mind, I entered my training contract only too aware of the need to be live to potential money laundering situations, duties of confidentiality and potential of conflict of interests. However, having spent the first period of my training contact at a specialist family firm working with cases involving children with an international element, I quickly became aware of the need to be alert to potential child abduction scenarios.
Re H 2 FLR 294 concerned a Swedish mother and English father who met and had a child in Sweden. The parents separated and the child lived initially with the mother in Sweden. Later the mother enrolled in a one year art course which involved her living in both Spain and England. The child initially remained living with her father in Sweden until later that year the parents agreed that the child would travel to Wales to reside there for a period of time with the father. Following acrimonious telephone conversations between the parents, the mother consulted a solicitor in Wales with a view to securing a return of the child to Sweden. The solicitor failed to spot that the Convention on the Civil Aspects of International Child Abduction (The Hague Convention) may apply, instead advising her that she would need to apply for a Residence Order under the Children Act 1989.
Whilst accepting that child abduction is a specialist branch of family law, Mr Justice Holman stated that "just as every general practitioner must be alert to spot a rare illness even if he does not have the expertise to treat it, so also anyone, whether judge or practitioner, having any involvement with cases concerning children, must always be alert to spot a possible case of international child abduction".
The Hague Convention has now been ratified by over 80 countries. Each signatory agrees that if a child is abducted to their country they will not enter into a full investigation into the welfare of the child and will instead provide for the child's return to their country of habitual residence; a full welfare enquiry will then be the responsibility of the child's country of origin. Crucially the ambit of the Hague Convention extends beyond a ‘snatch' and can apply even after a child has been in the new country for a significant period of time.
Over recent years international travel has become much more accessible and there has been a significant rise in the number of children and families living and working outside their country of origin. As a result, it is now vitally important to consider at the outset whether there is a potential child abduction scenario. As soon as it becomes known that a child has formerly lived abroad, and that one parent may wish to return to that country, a possible case under The Hague Convention may arise and specialist advice should be sought.