No child left behind?
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Joanna Farrands considers whether Brexit will result in abducted children being left stranded overseas
There is considerable concern among family law practitioners that parents whose ex-partners have removed their children from the UK and taken them to an EU country may lack legal protection after Brexit.
Currently, child abduction falls under the headings of kidnapping and false imprisonment, which are common law offences. It is worthy of note that there is a proposal to change this into statutory criteria to frame the offence in a more modern language. The proposal is that both of these are replaced with two new statutory offences: false imprisonment will be prosecuted as unlawful detention and kidnapping will become a statutory offence based on the use or threat of force to take or move the victim.
The aim of the proposal is to provide a clearer distinction between kidnapping and false imprisonment, which should make them easier to prosecute.
However, of even bigger potential impact for parents and practitioners of family law alike is the second strand to the proposed reforms: making it a criminal offence for parents to keep their children overseas in contravention of a court order or when they do not have the permission of the other parent.
There is currently a gap in the law in that it is not a criminal offence to take a child abroad with the other parent’s consent and then not return the child as agreed. The recommendation means that child abduction as an offence will be extended to include cases where a child is lawfully removed from the UK but then unlawfully retained abroad. There is a further recommendation to increase the maximum sentence from seven to 14 years.
Separated parents should be aware that they risk a criminal record if they ignore the law. If they unlawfully retain a child, then they risk an order for that child to be returned to the country of the child’s habitual residence. This has potential long-term implications for the parents as it will no doubt affect the court’s view of their ability to care for the child and put the child’s best interests first.
For parents of abducted children, if the abduction is within the EU then the legislation for protecting them comes under Brussels II. This provides greater protection for a speedy return of their children requiring a six-week time table to be strictly complied with. Fortunately, this time table is also frequently observed by England and Wales in non-EU cases and the consensus is that this is likely to continue.
While there is uncertainty as to the future for these types of cases for post-Brexit Britain, what is certain is that we will stay part of the Hague Convention on the civil aspects of international child abduction, which gives children protection against child abduction.
There will no doubt be other implications for parents whose children have been relocated to the EU from post-Brexit Britain, such as a potential increase in airfares, increased difficulty in travelling to visit the child for holidays or having them to visit, an increase in insurance costs, and increased concern about return from holiday or future schooling arrangements.
There is ongoing uncertainty as to what post-Brexit Britain will look like and the relationship we will have with our European neighbours – for any parent whose child now lives in the EU this must be very worrying. Much uncertainty remains over when and how Britain will withdraw from the European Union. Some critics of the Leave campaign have suggested they have provided insufficient detail on exactly what Brexit will mean, resulting in ambiguity and uncertainty over negotiations to trigger article 50.
A separated parent planning to take their child overseas for a holiday should obtain the consent of the other parent in writing, preferably in a signed and dated document that can be taken on their travels. In addition, to ensure complete transparency a parent must make sure full details of the holiday are provided, such as travel and accommodation information and contact details while away.
If consent is not forthcoming, the parent will need to consider seeking the approval of the court. The court’s approach is to look at what is in the child’s best interests, and while this generally includes holidays, if there is a risk of abduction the court will take it very seriously and can impose preventative measures.
Joanna Farrands is a partner at Barlow Robbins