What to do if a child is abducted from the interim care of a Local Authority to a non-Hague state

06 July 2016

Ruth Cabeza recently led Victoria Flowers in High Court proceedings in which a child in the interim care of a local authority was abducted by a parent to Kenya, which is not a party to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

Practitioners should be aware of the need to act with haste, care and precision should such issues arise. Plainly, there needs to be thorough inter-agency co-operation as swiftly as possible, including with the third state. From a family law perspective, the matter needs to be put before the court on an urgent basis, and thorough consideration given to relevant orders that may assist in achieving the return of the child.

Depending on the circumstances of the case at hand, issues to consider will include whether to seek to invoke the inherent jurisdiction of the court and make appropriate orders (bearing in mind the provisions of section 100 Children Act 1989).

The advantages and disadvantages of discharging the interim care order and making the child a ward of court should be weighed up, including potential recognition of the child being a ward of court in courts of the third state should proceedings commence there and/or whether the existence of an interim care order will make it easier for the local authority to assert locus in the foreign court. These are issues upon which a court is likely to be assisted by expert legal opinion on the relevant law of the state to which the child has been removed.

It may be that a declaration of abduction should be sought, and there would need to be focus on the evidence required in order to satisfy the court of the same.

Other relevant issues may include which agencies and organisations could be invited and requested by the court to assist, and whether disclosure of certain papers filed within the proceedings to such agencies and organisations should be sought.

Liaison with the International Family Justice Office may be wise, and practitioners should be aware of the possibility of obtaining an order for a party’s solicitors to disclose any information in their knowledge or control as to the child’s whereabouts, or capable of assisting in tracing their whereabouts. In the case of Re H (Abduction: Whereabouts Order to Solicitors) [2000] 1 FLR 766 Hughes J considered that an order that solicitors provide any and all information in their knowledge or control was ‘necessary and proper even though it overrides the legal professional privilege which the client, not the solicitors, would otherwise have. The need to find the child properly prevails.’ [769]

If you would like any assistance in a case raising similar issues, please do contact the clerks.