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Child abduction should be treated as kidnapping, Lord Chief Justice says

13 December 2011

The Court of Appeal has called for a review of child abduction law as it dismissed the sentence appeals of two fathers convicted of abducting their children.

Child abduction, the Lord Chief Justice said, should be regarded as kidnapping and the current maximum custodial sentence of seven years extended accordingly to life imprisonment.

Giving the court’s ruling in R v Kayani and Solliman [2011] EWCA Crim 2871, Lord Judge said child abduction was “an offence of unspeakable cruelty”, before adding that any reference in mitigation to the right to family life, whether at common law or under article 8 of the European convention on human rights, was “misconceived” (R v Kayani and Solliman [2011] EWCA Crim 2871).

Lord Judge went on to confirm the jail sentences imposed on the two fathers, saying that in such cases a prison sentence of a length reflecting the culpability of the offenders and the harm caused was “entirely appropriate”.

“We can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered,” he said.

Although the father in Kayani had entered a guilty plea, the Lord Chief Justice said the circumstances of the case were so “outrageous” that the sentence, at the higher end of the scale, “was not manifestly excessive”.

He also confirmed the sentence in Solliman as “appropriate”, adding that “had it been somewhat longer, we should have been unlikely to interfere”.

In both cases – otherwise unrelated – the fathers had abducted their children for several years and taken them abroad. They were sentenced under the Child Abduction Act 1984, which provides for a maximum seven-year sentence.

Cases of this kind were “incredibly troublesome” and were “becoming too frequent”, Lord Judge said.

Departing from the 1991 precedent set in R v C, where a conviction for kidnapping was quashed, Lord Judge said the discrepancy in sentences between child abduction and kidnapping was “illogical”.

“Our view is clear,” he continued. “Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate. To that extent the observation of the court in R v C has been overtaken by events and has no continuing authority.”

However, the Lord Chief Justice said, as a common law offence kidnapping was difficult to prove and the law “somewhat confused”.

Calling on the Law Commission to extend its current consultation on kidnapping, he suggested child abduction should be treated as kidnapping and that the maximum sentence should be increased beyond seven years.

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