International Child Abduction

A child may be considered to have been abducted if they have either been wrongfully removed from their place of habitual residence or wrongfully retained in a place that is not their place of habitual residence. Habitual residence, while capable of interpretation, will generally mean where the child usually lives with the parent who has main care of the child.

Taking early legal advice is a priority in these circumstances. Where you believe the child to be will determine what action can be taken.

If the child is in a country that is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (commonly known as ‘The Hague Convention’),  for example Australia, then certain procedures can be initiated to secure the return of the child to the UK.

If the child is in a country that is not a signatory to this convention, such as Egypt, then other steps have to be considered, for example seeking the assistance of the consular and diplomatic services such as the Foreign and Commonwealth Office.

Taking early legal advice is a priority. A child in this instance may have been wrongfully removed and depending on where the child has been removed to will determine how the child can be returned.

If this is not a matter of agreement and you do not consider such a move to be in the best interests of the child, then you can consider raising court action to interdict the other parent from removing the child out of the UK without your consent.

This interdict is a court order which prevents the other parent taking the child out of the UK. You can also apply to the court to have the child’s passport surrendered and the court may order that the child’s whereabouts are disclosed at this point. The police can also arrange to have a port alert or all ports warning in place at all ports and airports as an additional measure. There has to be an imminent risk of removal for such a measure to be taken; it is not in place as a matter of course.

The Children (Scotland) Act 1995 expects that if a parent has parental responsibilities and rights then that parent should give their consent to the removal of a child out of the UK. Although signed authority is not required, it is good practice to obtain it.

It is a good idea to check the regulations of the country that you plan to visit to see if it has any specific requirements. For example, some countries require sworn affidavits from the parent that is consenting to the travel; others need to see the child’s birth certificate and if you are divorced, the extract decree of divorce. Border controls are becoming more vigilant where an adult may be travelling with a child and the better prepared you are, the easier travel will ultimately become.  We can assist with preparing affidavits and certification of documents such as birth and death certificates and divorce decrees.

It is important that you seek early legal advice in your home country to establish if your country is a signatory to the Hague Convention or not. If so, legal procedure can be instigated in Scotland to have the child returned to your country.