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Revisiting child abduction: solving the problems in Nicolaou and Kayani

Date:19 NOV 2014


Two deficiencies in the regime created by the Child Abduction Act 1984 (the 1984 Act) were highlighted in the cases of Kayani [2011] EWCA Crim 2871, [2012] 1 WLR 1927 and R (Nicolaou) v Redbridge Magistrates’ Court [2012] EWHC 1647 (Admin), [2012] 2 Cr App R 23 respectively. As part of a larger project, also including recommendations for the replacement of the common law offences of kidnapping and false imprisonment in statute, the Law Commission has made recommendations designed to resolve these problems with the law on child abduction.

There are two child abduction offences under the 1984 Act. First, section 1, child abduction by parents (or connected persons), committed by taking or sending a child out of the UK without the appropriate consent. Secondly, section 2, child abduction by other persons, committed by taking or detaining a child from persons with lawful control of the child. This article focuses on the problems with these two offences.

The problem in Kayani

Kayani concerned conjoined appeals against sentence on behalf of two fathers who had been separately convicted of the abduction of their children contrary to section 1 of the 1984 Act. In dismissing the appeals, the Lord Chief Justice observed that 'the abduction of children from a loving parent is an offence of unspeakable cruelty'. The Court of Appeal also disapproved previous authority to the effect that child abduction offences should be preferred over a kidnapping charge in all cases of parental abduction. Lord Judge requested that changes to the law be considered, stating:

'We invite the Law Commission to address the question whether cases where children are removed from one parent by the other should be treated as kidnapping offences. In the meantime, in any event, pending any possible change to the substantive law, there are cases falling within the child abduction offence which merit a sentence greater than the maximum current sentence of 7 years imprisonment after a trial. We recommend that the maximum sentence for child abduction should be increased.'
In brief, the problem is that very serious instances of child abduction are tantamount to kidnapping but cannot attract the levels of punishment that would be meted out for a conviction for that offence. Further, the current common law offence of kidnapping requires, in every case that the defendant took the victim by force or fraud. This requirement means that kidnapping will not always be available in a case of parental child abduction.

The problem in Nicolaou

Nicolaou concerned a child who had been kept in Cyprus by his father for a number of years, despite a court order authorising only a 3-week trip. Hague Convention proceedings found that the child had been wrongfully retained and an order for his immediate return was granted. The father took the child into hiding to avoid enforcement of this order. A warrant was issued for the father’s arrest, upon which a European Arrest Warrant requesting his extradition was based. However, the domestic warrant was quashed by the High Court, as it was held that the father’s act of retaining the child, did not come within the definition of section 1 of the 1984 Act and hence the crime had not been committed.

A reading contrary to that of the Divisional Court might be supported on the ground that section 1(4) of the 1984 Act contains a defence, which applies where a parent or other connected person, in whose favour there exists a child arrangements order providing that the child is to live with them, 'takes or sends the child out of the United Kingdom for a period of less than one month'. This makes it sound as if the taking or sending is a continuing activity taking place throughout the period the child is away.

On the other hand, two opposing points may be made. First, the wording in section 1(4) is a later addition; it is therefore not decisive as to the meaning of the original section. At most, it may illustrate what the drafter of the addition believed the original drafter to have meant. Secondly, 'takes or sends V for a period' may be read as shorthand for 'takes or sends V to be there for a period' but does not literally mean that the taking or sending itself lasts throughout that period. On this interpretation, the criminal conduct of the defendant would not be seen as continuing but would be complete at the time of departure from the UK.

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On balance, it is submitted that the Divisional Court’s reading of section 1 of the 1984 Act was correct. This leaves the problem that, unlike the child abduction offence targeting those other than parents and connected persons (in section 2 of the 1984 Act) the offence under section 1 contains no language capable of covering a retention, or wrongful failure to return, as opposed to an initial act of abduction. Further, the actions of the father in Nicolaou would not constitute kidnapping, as that offence requires 'taking or carrying' rather than 'keeping or detaining'.

The Law Commission’s proposed solutions

The Law Commission recommends that the problem identified in Kayani be solved simply by an increase to the maximum sentence for the child abduction offences in the 1984 Act from 7 to 14 years’ imprisonment. As part of its recommendations for the reform of kidnapping, outside the scope of this piece but discussed in detail in the report Simplification of Criminal Law: Kidnapping and Related Offences (Law Com No 355), it favours a somewhat narrower, more focussed statutory kidnapping offence, sitting beside a new statutory offence of unlawful detention to replace the common law offence of false imprisonment. These changes would improve and clarify the law, but are not designed to extend the scope of the kidnapping offence to include cases of parental child abduction. The Commission considers that child abduction and kidnapping have different foundations in terms of the type of conduct and consequences they seek to confront. There will be no liability for kidnapping under the current law if the victim consents to being moved. Child abduction, however, is concerned with the consent of the other parent or the court. Child abduction offences are not principally concerned with the wishes of the child as such, but with child protection: they are intended to prevent a child being removed from a place of safety. Whilst prosecutors should not be dissuaded from charging parents with kidnapping where the elements of that offence are present, the best way to eradicate incongruity in the levels of sentencing in serious cases is to increase the maximum sentence for child abduction. This would recognise the potential gravity of this type of offending at the top end of the spectrum (as highlighted by the Lord Chief Justice in Kayani).

As to the Nicolaou problem, the Commission recommends extending the offence in section 1 of the 1984 Act to situations in which, having taken or sent the child out of the UK with the appropriate consent, a connected person keeps or retains that child outside the UK without the appropriate consent or in breach of the conditions of that consent.

The Commission recognises that disputes between parents about where a child should live are in general better resolved through the civil rather than the criminal law. Any criminal offence should therefore be confined to actions which frustrate the civil court’s process. The offence under section 1 of the 1984 Act is justified because the child is outside the jurisdiction of the civil court, making it harder for that court to make and enforce its decision about where the child should live. For this reason, the criminal proceedings are not concerned with the substantive question of where the child should eventually live, and the civil and criminal processes operate quite independently of each other. Where a person takes a child abroad, proceedings under the Hague Convention may recover the child but are not designed to recover the abductor. Conversely an extradition request for the purposes of criminal proceedings may recover the abductor but are not designed to recover the child. Following these principles, there is no objection to extending the offence under the 1984 Act to include the wrongful retention of a child. Wrongful retention, just as much as wrongful abduction, frustrates the process of the civil court by keeping the child out of its jurisdiction. Proceedings for contempt of court will be available to perform the same function in some instances, but will not always be an adequate remedy: the situation can arise equally when the child is taken abroad with the consent of the primary carer and no court order exists.

One potential issue raised by the proposed extension to the section 1 offence is that it would then be extraterritorial. On the most obvious analysis, the conduct which is the subject of the criminal sanction under this extended offence (whether considered as an act or omission) is ‘retention’ which occurs in the foreign state to which the child has been taken, and not in England and Wales. However, the idea of a strict rule against extraterritorial criminal offences is outdated. That conduct frustrates the domestic civil courts’ processes, and the left behind parent who will suffer often very great emotional pain and distress. Whilst the extraterritorial nature of the proposed extension may in certain circumstances cause difficulties in securing the return of those accused of the new offence from abroad, this will depend in each case on the state of the particular extradition arrangements in place.

The Law Commission remains of the view that criminalising such conduct is desirable and will have an important declaratory effect. Should the recommendation become law it will improve the position of children and left-behind parents who are the victims of wrongful retention abroad.

The report, Simplification of Criminal Law: Kidnapping and Related Offences (Law Com No 355) is available to download here.