A Law Commission consultation paper entitled ‘Simplification of Criminal Law: Kidnapping and Related Offences’ published on 20th November 2014 makes two recommendations which, if made into law, will have grave consequences for parents who take their own children out of the country without the other parent’s consent.
Family law, which is civil rather than criminal law, provides that a parent cannot take a child out of the country without the consent of every other person with parental responsibility; this is usually, but not always, the other parent. If that consent is not forthcoming the Family Court can grant permission for a child to be taken abroad either temporarily or on a permanent basis.
If a child is abducted abroad, international civil law applies if the country to which the child is taken is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980. The ethos behind the Convention in is that the child should be immediately returned to the country of their habitual residence. This is because the court in the child’s home country is deemed to be the best arena in which to determine what is to happen to them.
Running in tandem with the Hague Convention is the criminal law; it is a criminal offence for a parent to abduct a child and take them abroad. The Child Abduction Act 1984 contains the criminal law, the Child Abduction and Custody Act 1985 Act embodies the Hague Convention law.
The Hague Convention not only covers wrongful removal of a child but also wrongful retention. Retention means keeping a child in a foreign country. Currently, there is no specific criminal offence of wrongfully retaining a child. The Law Commission recommends that the criminal law be amended so that a parent who has wrongfully retained a child can be charged with a criminal offence. This covers the scenario of a parent taking a child abroad for an agreed period of time but then not returning them when that time expires.
The report also recommends that the term of imprisonment for parental kidnapping should be increased from 7 to 14 years.
The criminal law is expanding to include matters which were previously only covered by family law; other examples include domestic violence and forced marriage. This expansion means ultimately that the criminal law enforcement agencies can be utilised and the threat of longer prison and other criminal sanctions should make the law more effective.