Child Abduction in the Spotlight

November 6, 2014

The recent case of Ashya King, the five year old boy whose parents took him from the UK to another country for medical treatment, brought the issue of child abduction and wardship into the public domain. The case raised several questions about the rights of parents versus other authorities. The case of Ashya King is particularly unique and the facts surrounding it are not synonymous with a classic case of parental child abduction.

Technically child abduction is the unlawful removal or retention of a child by one parent or a relative ie grandparent, in another country. The 1980 Hague Convention on the Civil Aspects of International Child Abduction is an international agreement between various countries throughout the world. Its main objective is to protect the child in the circumstances of child abduction by assisting in the return of an abducted child to the country where he or she normally lives.

Article 1 of the Hague Convention sets out the objectives:

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. (1980 Hague Convention on the Civil Aspects of
International Child Abduction Article 1).

‘Rights of custody’ have been determined by the Convention as rights relating to the care of a child with particular reference to determination of the child’s place of habitual or normal residence.  Determining the issue of habitual residence of the child is a key element in child abduction cases. It is also central to determine that the person seeking the return of the child has the appropriate rights of custody.

In April 2014, William Cross, Director in Cleaver Fulton Rankin, successfully appealed a case in the Supreme Court on behalf of clients whose grandson had been abducted from his place of habitual residence by his mother. From birth, the child’s mother assigned legal rights of custody and guardianship to the grandparents to act as the child’s primary carer. In March 2012 when the child was seven years old, the mother abducted him from his place of habitual residence, Lithuania, to Northern Ireland and terminated any rights of custody and guardianship that the grandparents had.

The grandparents sought a declaration that the child had been wrongfully retained in Northern Ireland in breach of their rights of custody, and subsequently sought an order that he was returned to Lithuania. The argument made by our legal team was that rights of custody should be interpreted widely, and should include “inchoate rights” or informal rights of custody, accrued by persons with whom a child had been living, in this case the grandparents of the child. The Supreme Court agreed and decided that our clients’ grandson should return to Lithuania. This was a landmark case, which has established the principle of inchoate rights of custody in certain cases in the UK and also confirms the proposition that grandparents enjoy rights of custody in certain situations.

Whilst incidences of child abduction are thankfully rare, there has been an increase in the number of reported parental child abductions in recent years. The abduction of a child is extremely upsetting for parents, relatives and all parties involved and when faced with such a situation it can be difficult to know who to turn to for advice. Our experienced team of family lawyers are able to help and guide you through the legal process and can be contacted using the details below.

 

To find out how we can help you, please contact:
Michael Graham, m.graham@cfrlaw.co.uk
Cleaver Fulton Rankin Limited, 50 Bedford Street, Belfast, BT2 7FW.
T: 028 9024 3141 W: www.cfrlaw.co.uk