UK family lawyer Donna Tilbrook gives her advice on dealing with international child abduction.
Advising clients on worries and concerns about international child abduction has to be handled carefully, with consideration and with as much information as possible to assist the parent in making decisions going forward.
Hague Convention
International child abduction proceedings are generally dealt with under the 1980 Hague Convention, and there is a general rule that cases should take six weeks, as these are what we call summary proceedings — proceedings that should be based on initial information without having to call live evidence, to speed up the process, ensuring that children are returned to their homeland quickly and that a final decision is made promptly.
Delay
That may be the blueprint; however, in reality, proceedings can often take much longer, and therefore, you have to be prepared to accept that delay is possibly inevitable. The delays are often around locating the parties, judicial availability, safeguarding concerns and the complexity of the case. Each case has to be considered on individual circumstances, and that in itself can cause delay. What I would say is crucial is that you act quickly after the abduction or retention has occurred, so that the process can start as soon as possible. What is also important when you start this process is that you are as specific as possible and provide as much information about you and your family as you can, to assist those who advise you, and to have as much clarity as possible so that there is no delay in having to keep requesting information, thereby assisting in smoother running of the case.
Prevention
The question that people ask is: “What can you do to prevent child abduction?”
This is about having information and what plans could be in relation to the children. Recently, I have had a case where the mother informed the father that she wished to relocate to Australia with their children. Here is where an open, honest and careful conversation needs to take place, confirming the position of the parties. It may be that you are not in a position to agree to them moving to Australia, and therefore you inform the other party that they will have to make an application to the court, and that they should not share information with the children until the court has made a decision on whether it gives permission to remove the children from the jurisdiction. If your partner is not being open and frank in relation to information about their plans or about applying to the court, then you can apply for a prohibited steps order.
Travel restrictions
This can include restrictions to prevent the parent removing the children from the jurisdiction, including confiscation of the children’s passports and putting in a port alert, which ensures that you can maximise the protection of the children not being removed from the jurisdiction without your consent.
If you wish to remove the children from the jurisdiction and the other parent does not agree, then you need to make an application for them to be removed from the jurisdiction, and in that case, you need to provide as much information as to why you are moving, with as much consideration as possible for the left-behind parent and how they can remain integrated into the children’s lives.
Mediation
Another important question we often get asked is: “Is mediation a good idea in child abduction cases?”
Mediation is a very good way for parents to communicate, in a safe environment, their wishes, feelings and aspirations going forward. I gave recent advice in relation to a family whose separation meant that the mother wanted to return to Holland. It is right to say that the children were really integrated into both British life and the way of life in Holland, due to the amount of time spent visiting their maternal family. In this case, mediation was a good option as both parents valued the fact that it is not that far away from England. If they worked together to set out a plan, then they could work positively to decide whether the children were to remain in the UK or move to Holland. The parents were going to navigate the choices and the plans through the help of mediation to see whether this could work out.
Advantages
The advantage of mediation is that you can try and build up the trust, though this is not always possible. However, wherever it is possible, then mediation is a really good instrument within all the other options that parents can have when making decisions about where their children should live. The mediation could encourage parents to reach an agreement, and that can be contained in a court order, making it enforceable.
Sustainable solution
The mediator will guide your discussions and help find solutions that you may not have thought of before. It often offers a structured, neutral environment for parents and can potentially resolve issues without resorting to court, focusing on the child’s best interests. Mediation facilitates communication, encourages co-parenting and can lead to a more flexible and sustainable solution — whether that means the children remain in the jurisdiction or there is agreement for them to leave the jurisdiction.
Read more about International Child Abduction on our website.
Read more about Donna Tilbrook, Best Solicitors, UK.