What is Child Abduction?

Child abduction happens “when a parent or a relative or someone acting on their behalf removes, retains, or conceals a child, under the age of 16, in breach of the other parent’s custody rights whether joint or sole”.

In the UK, it is a criminal offence for anyone 'connected with a child' under 16 to take or send that child out of the UK without 'appropriate consent' of any other person who has ‘parental responsibility’ for the child.

This is set out in the Child Abduction Act 1984 as follows:-

• The people ‘connected with a child’ are the child’s parents, guardians and people with a residence order or who have parental responsibility.
• ‘Appropriate consent’ is the consent of the mother, the father (if he has parental responsibility), the guardian or anyone with a residence order or parental responsibility, or the leave (permission) of the court.
• ‘Parental responsibility’ is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has”.

A mother automatically has parental responsibility for her child from birth. However, the conditions for fathers vary.

• If the parents were married to each other at the time of the birth of the child, then each parent will have parental responsibility for the child.  If they divorce, their respective parental responsibilities cannot be lost, short of adoption of the child.
• If the parents were not married to each other at the time of birth of the child, the father can acquire parental responsibility through an agreement with the mother; or a parental responsibility order, made by the court; or by registering the child’s birth jointly with the mother. He can also acquire it through a residence order, but this right will only last for the duration of the order.
• A woman who is the mother’s same-sex partner can now have parental responsibility in the same manner as a legal father.

A residence order is an order stating where a child should live. In cases where parents separate and there is a dispute about where their children should live, the court will decides this according to what it deems to be the ‘child’s welfare’.  If the court makes a residence order in favour of a person or persons, they automatically have parental responsibility while that residence order is in force.  They can also take the child outside England and Wales for up to a month at a time without needing the permission of any other persons who has parental responsibility or the court.

Abduction of a child within the United Kingdom

Because the legal systems of Scotland and Northern Ireland differ from those of England and Wales, it has been possible for parents to go “forum shopping”. But, removing a child from one area of the United Kingdom to another without appropriate consent is a criminal act under the Family Law Act 1986, which aims to prevent conflicting orders being made in respect of a child in the UK.  Most importantly, the Act lays down that orders made in one part of the UK are enforceable throughout the UK.  In other words, the police will be bound to undertake a criminal investigation and seek to locate your child.

International child abduction

If your child is abducted to, or illegally retained in, another country, the chances of recovering your child will depend on the customs and laws of that country as well as your relationship with the person who has taken the child.

If you child has been abducted to a country which is a member of Child Abduction, your Central Authority will help you put an application for the return of your child.  Contact them immediately.

If your child has been taken to a country that has not signed the Hague Convention, you may need to apply for custody and permission to bring your child back to the UK through the courts of that country. You should contact the FCO's Child Abduction Section.

The United States takes child abduction very seriously whether the abduction is across state lines or the child is removed from the country.

This is set out in Title 18, Section 1204 of the United States Code (The International Parental Kidnapping Crime Act) as follows:-

Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.

As defined in this section: -

• the term “child” means a person who has not attained the age of 16 years; and
• the term “parental rights”, with respect to a child, means the physical custody of the child
• whether joint or sole (and includes visiting rights); and
• whether arising by operation of law, court order, or legally binding agreement of the parties.

The law provides a defence where the parent who has taken the child acted pursuant to a valid court order or where that parent was fleeing domestic violence or where the circumstances were beyond that parent’s control and that parent made reasonable attempts to notify the other parent or lawful custodian of the child within 24 hours and then returned the child as soon as possible.

Abduction of a child from one State of the Union to another

The Fugitive Felon Act (18 U.S.C. Section 1073) facilitates state prosecutions of state felony crimes and all 50 states and the District of Columbia have laws treating parental kidnapping as a felony under certain circumstances.  These kidnapping laws vary from state to state but essentially abductions and retentions that involve crossing state lines are felonies.  In addition, generally these laws permit accomplices of the abductor to be charged as co-conspirators. There is also the possibility of a civil tort suit (action in damages) against the abductor and his or her accomplices for the pain and suffering and out of pocket expenses of the injured party.

The Office of Children’s Issues, which is part of the Department of State, is the United States Central Authority under the Hague Convention.  If your child has been wrongfully abducted from the United States, the State Department’s Office of Children’s Issues should be contacted immediately and a missing child report should be filed with the National Center for Missing and Exploited Children.