Child abduction or lawful removal?


Author: Anna Wakeling


The recent case of Re Alcott (1) [2016] EWHC 2413 (Fam) serves as a reminder of the need for careful consideration when relocating with children from one jurisdiction to another.

Alcott v Ashworth

Former BBC children’s presenter, Katy Ashworth, was accused by her former partner of abducting their toddler from Australia. Her former partner, a documentary maker living in Australia, made the claim after Ms Ashworth resigned from her role as the star of CBeebies cookery programme ‘I can cook’ to begin a new life with him and their child in Australia. However, just days after arriving in Australia she returned to the UK with their child without the father’s consent or knowledge.

The child’s father brought a claim in the High Court under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (1980 Hague Convention) for the return of the child to Australia. The 1980 Hague Convention is an international treaty; its aim being to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.

Child abduction is defined in Article 3 of the 1980 Hague Convention as the wrongful removal of a child from their country of ‘habitual residence’ and is a criminal offence in the UK. Habitual residence is a question of fact and the standard used to demonstrate a connection between a child and a particular country. The recent Supreme Court decision in Re B (A child) [2016] UKSC 4 found that the English concept of habitual residence should be governed by the criterion established in European jurisprudence as set out in A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1: namely, that there be some degree of integration by the child in a social and family environment.

The child’s father, therefore, argued that the child was habitually resident in Australia on the basis that the move was intended to be permanent and they had decided to apply for Australian citizenship. In contrast, the mother said that it was a trial attempt to see if their relationship would work out in the long term and not a permanent relocation.

Judge Verdan QC rejected the father’s argument and found that the child had not “acquired habitual residence in Australia”. He concluded that “(the child) had not put down roots” and “was not integrated to a sufficient degree in a social and family environment in Australia and that the mother was probably not integrated at all.” The mother’s removal of the child was therefore not abduction. It is also important to note that Deputy Judge Verdan QC concluded that the move had been based on a fundamentally flawed premise; the mother having discovered evidence in Australia that the father was in a relationship with four other women.

It is clear in this case that the child had not become sufficiently integrated in Australia so as to acquire ‘habitual residence’. Returning the child to the UK from Australia did not therefore amount to child abduction. However, often the situation is not so clear cut.

International relocation

The case shows the importance of considering the rights of the other parent when travelling outside of the UK with a child. As the law stands, the permission of every person with parental responsibility for the child is required to take the child outside of the country, unless there is a Court order regulating the care arrangements for the child. The mother will always have parental responsibility. The father will have parental responsibility if he was/is married to the mother or is on the child’s birth certificate (he can also acquire parental responsibility by agreement with the mother or Court Order). If permission is not obtained then the removal could amount to child abduction, even if the travel is only for a weekend away.

In most cases parents are usually able to agree short trips and holiday arrangements for their child. If agreement is not possible, the parent wishing to travel with the child will have to make an application to Court for a specific issues order that the child be permitted to travel outside of the jurisdiction for the trip.

Matters often become difficult and fraught when one parent is wishing to permanently relocate with the child to another jurisdiction. This often follows the breakdown of a relationship and the wish of one parent to return to their ‘country of origin’, for employment reasons or to relocate with their new partner or simply to have the support of their family of origin. Court proceedings should always be seen as the last resort, they can often be stressful, time consuming and costly, and it is therefore always preferable to try to reach a negotiated arrangement for the benefit of the child; for example by direct discussions or mediation. Unfortunately this is not always possible and, in such cases, the parent wishing to relocate abroad with the child will have to make an application to Court for permission to permanently remove the child from the jurisdiction.

The welfare of the child is the Court’s paramount consideration. Such applications therefore need to be supported by detailed evidence demonstrating that the application is child-focused and based on a genuine desire to relocate, not simply to exclude the other parent. A practical and cogent plan for the arrangements upon relocation needs to be demonstrated, as well as, how the applicant intends to promote the relationship of the child with the other parent.

Conclusion

To leave the country with a child without agreement from any other person who has parental responsibility or a Court Order exposes a parent to the risk of allegations of child abduction which may result in what can often be financially and emotionally draining Court proceedings; not to mention criminal proceedings.  Agreement with any other person with parental responsibility is the first port of call, failing which a Court application is necessary. Whilst, as it transpired, the Court decided that Ms Ashworth was simply returning the child home to the UK, it underlines the need for careful thought and planning when travelling abroad with a child, be it on a temporary or permanent basis.

Anna Wakeling, Associate, Fladgate LLP (awakeling@fladgate.com)

 

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