Abduction

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  • Child Abduction
    • 1980 Hague Convention
      • Applicable up to the age of 16
        • 1996 Hague Conventions are more relevant to children over 16
    • Brussels 2 Revised
      • Enhances the provisions of the 1980 Hague Convention
    • What is Abduction?
      • 3 components
        • 1 -  Wrongful removal or retention (Art. 3 Hague Convention 1980)
          • Removal - child is removed out of country without consent of other parent
          • Retention - a child is removed from the country originally with an agreement but is then retained in that country
          • Wrongful - another parents does not consent - a breach of custody rights under Art. 5
        • 2 -  Habitual Residence (Art.4 HC 1980)
          • The child’s home
          • to remove the child from its home is a wrongful removal retention in breach of the child’s custody rights
        • 3 -  Custody rights (Art.5 HC 1980)
          • Parents custody rights have been reached by the removal or retention of the child
    • Defences
      • 1980 HC
        • Parent not actually exercising custody rights, Art.13(A) HC 1980
        • Consent or subsequent acquiescence, Art. 13(A) HC 1980
        • Grave risk to the child, Art. 13(B) HC 1980 
        • Childs objections, Art. 13 HC 1980
          • Child’s objection is not objecting to the return to the particular parent but rather return to particular country
        • Settlement , Art. 12 HC 1980
          • Application should be made within 12 months of abduction
        • Childs human rights and fundamental freedoms , Art. 20 
    • Abduction from the UK
      • 1 -  Identify countries you're dealing with
      • 2 - Identify applicable legislation
      • 3 -  Identify wrongful removal/retention
      • 4 - Identify habitual residence of the child
      • 5 -  Identify persons/institutions with custody rights
      • 6 -  Identify breach of custody rights
    • Procedure to Recover
      • Wardship proceedings
        • Proceedings through the HC where declarations can be made under the Child Abduction ad Custody Act 1985 confirming wrongful removal/retention, habitual residence, breach of custody rights -
          • endorsement from HC by way of wardship proceedings can be attached to HC application which will increase the likeliness of success of application
      • HC can also make declaration requiring that the child is to be returned
      • HC can exercise inherent jurisdiction
        • Can make any order i respect to he child - only limitation is wether an alternative order can be made via case law/statute
      • Wardship
        • The court overtakes custody of the child
          • A child may be made ward of the court if there is a fear of abduction
      • Enforcement of local orders 
      • Mirror orders
        • An order can be applied for in abducting country which mirror local order and can be effective if an abduction occurs
    • Orders Available
      • CA 1989
      • Protective  Measures - Family Law Act 1989
      • Wardship proceedings
      • Do nothing
        • if they haven't commenced within 12 months it would be difficult for the court to order return of the child
    • Legislation
      • Child Abduction Act 1984
        • s1 it is a criminal offence for any person connected with a child to take or send the child out of the UK without approbate consent
        • ‘connected with a child’ means parents/guardians of a child or any other person who has PR
        • s4 defences for when appropriate consent is not needed
      • Children Act 1989 S(8)
        • Prohibited steps order
        • Specific issues order
        • Mirror orders
      • Child Abduction and Custody Act 1985 - s5 & 8
        • Declarations which the court can make
      • Senior Courts Act Inherent Jurisdiction of the High Court 
        • Wardship proceedings
      • Family Law Act 1986 s33, 34 &37
        • provides remedies in terms of location of a child
      • Practice Direction 12F
        • Overview in terms of what practitioners would do and how the court would respond in terms of international child abduction
      • The Family Procedure Rules 2010
    • Prevention Steps/Orders
      • Criminal offence under Child Abduction Act 1984
      • Police Assistance
        • All Ports Warning
          • the child is under 16
          • no order is needed
          •  police work with immigration officials and set up a Port Warning so that Immigration are alerted of the possible removal of a child from a particular airport
          • a real and imminent threat of the removal of a child from jurisdiction within the next 48 hours
          • Practice Direction 12F para 4.7
            • details of information needed to be given to police in order to set up All Ports Warning
      • Wardship orders under inherent jurisdiction
        • PR is vested in the court
          • no meaningful steps can be taken in respect of the child without the courts approval 
            • if there is unlawful removal it will be considered contempt of court
      • Prohibited steps order s8
        • if a parent is having contact where there are abduction concerns there may be provisions to report to the police or deposit monetary bond or detailed itineraries
        • no immediate urgent concern of abduction
          • more to reinforce if there are concerns about potential abduction in future
      • Family Law Act 1986 s37
        • Surrender of passports
      • Child Rescue Alert
        • media publicity surrounding the removal of the child to try and affect the location and return of the child 
    • Recovery of the Child
      • Practice Direction 6C
        • disclosure of addresses by government departments
          • assists in tracing whereabouts of a child or tracing the person believed to be with the child 
      • The Family Law Act 1986 s33
        • courts have the power in proceedings relating to an order made under s8 CA to require any person who they have reason to believe may have information regarding where a child is to disclose that information to the court
      • Child Abduction and Custody Act 1985 S5
        • tracing a child in attempt to secure welfare
      •  Family Law Act 1986  s34
        • the court can make orders authorising an officer of the court to search for, take charge of and deliver a child to the court 
      • Collection and location orders under inherent jurisdiction of the High Court
        • the child is placed in the temporary care of the a named person or institution until a further hearing
      • Tipstaff
        • enforcement officer of the high court 
          • execute orders of the high court
            • often act with assistance of the police and information of the lawyers - have the authority to entered and search premises and use as much force as necessary to give effect to the order if they reasonable believe that a child may be found
              •  may also handover of passports or travel documents that may be utilised to leave the country

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