Globalisation is continuously expanding, with many individuals moving from their home country to live overseas for a variety of reasons, often work commitments. Now, more than ever, there are marriages between citizens of different countries, inevitably resulting in one party living in a country that is not their country of origin. In the event of the breakdown of a marriage or breakdown of a relationship between unmarried partners, where there are children of the marriage or relationship it is not uncommon for one parent to return to their home country with their child or children. Across Europe and the UK there are hundreds of reports of parental child abduction each year.
Problems arise when minor children are removed to another country by a parent without permission of the other parent, often without the knowledge of the other parent, without any intention of returning. This problem also arises when a parent, after having received the consent of the other parent to travel abroad with the child until a specific date, retains the minor beyond the agreed date of return.
The law in England and Wales differentiates between child abduction and kidnap. Abduction of minors is defined as taking away or detaining a child under 16 years from a person or place which he or she should lawfully be without lawful authority. Kidnapping is a more severe offence of taking and holding an adult or child through force or fraud against their will. It should be noted that even if the child goes willingly with the abducting parent this has no bearing on the illegality of the act of abduction.
There are often what the abducting parent considers to be valid reasons for taking such extreme action, such as the belief that their child is in an unsafe environment or the other parent is not fitted to take care of the child. However, parents that allow such feelings to distort their judgment take such an action will always result inevitably in a protracted legal dispute and is also an offence under the Child Abduction Act 1984. There is however a mitigating circumstance in that if the parent who wishes to relocate to another country has attempted to gain the other parent's permission but has not been able to contact them, if they can demonstrate that they have made exhaustive efforts to reach the other parent without success, the Court will not view the relocation as child abduction.
Children have their own rights including the right for their views to be considered, when they are deemed old enough to understand, under the Children Act 1989 and globally under Article 12 of the United Nations Convention on the Rights of the Child (UNRC) 1989. The Courts recognise that any decision will significantly impact on the child or children and that they should at least be able to express and have their views considered, commensurate with their age and ability to understand. The Courts will be keenly aware of the fact that some parents will attempt to coerce or bully the child into taking their side, as well as attempting to alienate the child against the other parent.
Vincenzo Senatore, Senior partner, "there are over 100 countries that are signatories to The Hague Convention on the Civil Aspects of International Child Abduction, together with each country's domestic laws such as Italy's Article 570 of the Italian Penal Code. In the wider world there are considerable variations, particular in countries that are not signatories to the Hague Convention" Vincenzo further stated "if you have concerns about your child being abducted and you hold parental responsibility over the child there are legal steps that you can take to prevent this, such as a Prohibited Steps Order under section 8 of the Children Act 1998, make an application to the Tipstaff (the High Court Enforcement Officer) or to the police so that a "port alert" is put on all ports of entry and exit to the UK."
Child abduction extends to all parts of the globe and in addition to the legislation outlined above there are further international laws to remedy the situation and protect children from the harmful effects of their wrongful removal or retention and to provide procedures to ensure their swift and immediate return to their country of habitual residence.
The Hague Convention on Civil Aspects of Child Abduction (1980 Hague Convention) ensures that each signatory is obliged to designate a central authority and the establishment of an institution of judicial or administrative proceedings. The Courts expect that where proceedings are ongoing the courts must act expeditiously.
Provided one year has not elapsed since the beginning of the proceedings the Courts "...shall order the return of the child forthwith..." (Article 12) expeditiously.
In the event of six weeks expiring from the date of the commencement of proceedings without a decision being reached, the central authority or applicant may request the reasons for delay under Article 11 of the 1980 Hague Convention.
Article 13 provides limited exceptions to the above provision known as "defences" to this principle:
- No actual exercise of rights of custody at the time of the removal or retention
- Acquiescence and consent
- Grave risk of physical or psychological harm or other undesirability for the child
- Child's objections, if sufficiently cognizant of the implications
If you think that there is a possibility that your child or children under 16 years could be subject to parental abduction, Giambrone & Partners family lawyers can advise you as to how to apply for a Prohibited Steps Order that offers legal protection to prevent your child being relocated without your permission or knowledge to another country. A Prohibited Steps Order governs a range of things related to children and can be invoked for one issue. Such an Order applies regardless of whether child's parent has parental responsibility. A Prohibited Steps Order can govern aspects of the child's life that alter the living conditions of a minor child.
The Children Act 1989 stipulates prospective applicants who can apply for a Prohibited Steps Order without the court's permission and those who must obtain permission before making an application.
Who can apply for a Prohibited Steps Order
- Either parent regardless of whether they have parental responsibility.
- An Individual who has been appointed as a guardian to the child. A guardian generally has parental responsibility and there is a legal duty to act in the best interests of the child.
- A person who has been granted parental responsibility, which may include step-parents or other relatives who have obtained parental responsibility by way of a Court Order.
- A local authority, usually social services, particularly if it is considered that there is a risk of harm
- Individuals who do not fall into the above categories but have a genuine interest in the child's welfare. For example, grandparents and sometimes close family friends, if they are significantly involved in the welfare of the child.
In such a situation, the applicant must demonstrate to the Court that the child's welfare could be at risk. The court will then assess whether the proposed order is in the best interests of the child.
The Scope of a Prohibited Steps Order ("PSO")
PSOs are usually made to prevent a person from taking the following steps
- Removing the child from the jurisdiction where they are lawfully meant to be – removal to another country.
- Preventing major changes to the child's upbringing such as changing their school
- Changing the child's surname.
- Choosing a course of medical treatment
- Preventing contact with individuals where there is a perceived risk to the child
- Deciding the chlld's religious instruction.
The Court will only make a Prohibited Steps Order once it has been established by considerable investigations that it is without doubt necessary and definitely within the child's best interests.
Giambrone & Partners lawyers have a wealth experience in this very specialised area of law and can provide legal assistance at any stage where a child has been abducted or there is a strong indication that they may be the subject of parental abduction. Vincenzo Senatore has rights of audience before the Hague Convention.
Vincenzo Senatore is a qualified Italian Avvocato (with Higher Rights of Audience) and English Solicitor, qualified as a solicitor in Northern Ireland and also qualified to plead before the International Criminal Court in The Hague.
Vincenzo has extensive post-qualification experience in Civil and Common law. He has exceptional experience of UK and international cross-border transactions across a many industry sectors as well as criminal law. Vincenzo is a formidable litigator delivering strategic advice to diverse clientele.
Vincenzo continued to expand his qualifications and international legal knowledge and moved to the USA to gain his Master of Laws (LLM) in International Business Transactions and Trade Law at the Catholic University of America, Columbus School of Law, Washington DC.
Vincenzo's other professional activities include being on the scientific organiser committee for the Association Internationale des Jeunes Avocats for conferences on Anglo-American Law and as speaker in webinars, lectures and conferences organised by the British Chamber of Commerce (IT), CUA, Columbus School of Law, Washington DC (USA), Lockey Stem Cells Building Research, Stanford University (USA), SKKU School of Business (Republic of Korea), and the Naples Bar Associations, as expert in Civil and Common law arena. He is also member of the International Criminal Court Bar Association, the Law Society of England and Wales, the Naples Bar Association, and of the International Academy of Financial Consumers (Korea) where he is also editorial member.
At present he is the only Italian lawyer registered in the List of Professionals of the Italian Embassy in Tokyo and the Italian General Consulate in Osaka. Vincenzo heads the Giambrone's Japanese Desk in Italy and the firm's offices both in Tokyo and Osaka, through the Strategic Alliances with Kikkawa Law Offices and Meilin International Law Firm.
Vincenzo regularly represents large and medium-sized Italian and Japanese enterprises and entrepreneurs doing business globally. His expertise includes a range of cross-border transactions, including M&A, joint ventures, opening branches and subsidiaries, and setting up companies in foreign countries, assisting clients to meet their outcomes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.