Q: My husband and I moved to England from Sydney five years ago for work however we split up soon after and my seven year old son and I moved out of the family home. Relations between us have been fairly hostile since the split but my ex continued to see our son every weekend.
Over the school half-term I agreed for my ex to take our son back to Australia for what was supposed to be a two-week holiday. However on the day they were due back he called me to say he and my son would not be returning to England. I am frantic, my son is supposed to return to school in London next week- what should I do?
When a child is retained abroad beyond an agreed holiday period or taken abroad without the permission of all those whose permission is required (which is generally both parents) this is technically parental child abduction.
Very sadly parental child abduction is a growing phenomenon particularly amongst international families. According to statistics released by the Foreign and Commonwealth Office and Reunite (the UK charity) last December the number of parental child abduction and custody cases more than doubled over the last decade, with almost two children being abducted abroad each day. It can have both civil and criminal law consequences depending on the particular circumstances of the child’s removal or retention and the countries involved.
Whenever parental child abduction takes place a left behind parent is well advised to seek urgent advice from a specialist law firm such as my own firm. There are immediate steps you can take to secure your son’s return to England. Legal Aid may also be available to pursue your remedies.
Fortunately Australia is a signatory to an international treaty called ‘the Hague Convention’ (the 1980 Convention on the Civil Aspects of International Child Abduction) which aims to restore children home to the country of their “habitual residence” as swiftly as possible so that any dispute over the arrangements for the child’s care or where the child should live is resolved by the courts in that country.
If an application is made under the Hague Convention within 12 months of the removal/retention, then the court must order the return of the child unless a defence applies. In order for a defence under the Hague Convention to apply, the abducting parent must show either that the person bringing the application consented or acquiesced in the removal or retention, that there is a grave risk that returning the child would expose them to physical/psychological harm or place them in an intolerable situation or that the child objects to being returned and is of sufficient maturity for the court to take their views into account (although a child’s wishes are only a factor and not determinative).
Once a child has been returned to the country, arrangements for the care of the child can then be properly determined by the national Family Court.
Helen Blackburn is a Partner at The International Family Law Group LLP — a law firm specialising in international family law matters based in Covent Garden, London. To speak to Helen or a member of her International Child Law team at The International Family Law Group call 0203 178 5668, email helen.blackburn@iflg.uk.com or visit www.iflg.uk.com
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