What Happens If My Child Is Abducted To A Non-Hague Convention Country?

What Happens If My Child Is Abducted To A Non-Hague Convention Country?

Having your child taken abroad without your permission is every parent’s nightmare. Fortunately, the Hague Convention on the civil aspects of international child abduction of 25 October 1980 (1980 Hague Convention), provides a legal framework for left behind parents to have their child returned to the UK. But what if a parent abducts their child to a country that is not a signatory to the 1980 Hague Convention?

Before looking at non-1980 Hague Convention avenues for having your child returned, let’s quickly recap on what powers the Convention gives a Court.

What is the 1980 Hague Convention?

The 1980 Hague Convention is an international treaty signed by 103 countries, including the UK. It provides for the return of a child to the country in which they are habitually resident. The returning court does not have the jurisdiction to decide whether or not the child would be better off in their country of habitual residence. Instead, the Convention is a treaty about where the jurisdiction of the courts of one state ends and that of the courts of the other country begins. Therefore, in deciding to return a child to a particular country, the returning court is not determining any matters concerning with whom the child is to live with and/or contact with the non-resident parent. These matters are to be decided in the country where the child is deemed to be habitually resident.

What should I do if my child is abducted to a non-Hague Convention Country?

Many countries, including China, Malaysia, India, Saudi Arabia, and Iran are not signatories to the 1980 Hague Convention. However, although some may not have signed the Convention, they may have bilateral judicial agreements with the UK. Pakistan and Egypt both have these types of agreements.

Pakistan

Alleged child abduction or retention will be determined under an agreed set of principles, formulated in 2003, by senior judges from Pakistan and the UK. Broadly, these principles provide:

• The best judge of the welfare of the child in question is the Courts of the country where the child is ordinarily or habitually resident.

• If a child is removed from the UK to Pakistan, or from Pakistan to the UK, without consent or a Court Order, a Judge of the Court of the country to which the child has been removed will typically only make decisions concerning the child’s return. The same applies if the child is taken from the UK to Pakistan, or from Pakistan to the UK, by a parent with visitation, access, or contact rights with the consent of the other parent but is not returned on the agreed date.

• Any dispute concerning which country the child ordinarily resides or is habitually resident should be decided before any return or welfare decisions are made.

• Applications under the agreement should be swiftly dealt with and decided.

Egypt

The abduction of a child from the UK to Egypt is not a crime in Egypt unless there is an Egyptian Court Order regarding custody of the child or travel restrictions.

Neither the British government nor the British Embassy can force the abducting parent or the Egyptian government to return a child to the UK. Even if the left-behind parent obtains an Egyptian custody order requiring the child to be returned to them, enforcing the Order is difficult, especially if the location of the child is unknown.

In January 2005, senior judges from the UK and Egypt signed a declaration that affirmed the principles of the UN Convention on the Rights of the Child 1989. The judges agreed the following principles:

• The child's best interests are the primary consideration.

• Direct contact between children and their parents, even if the parents live in different countries, is to be maintained.

• The child is entitled to know and appreciate the culture and traditions of both parents.

• Countries should take measures to prevent the non-consensual removal of children.

• It is important to maintain the continuity of the religious upbringing of children.

• The Courts of the country in which the child habitually or ordinarily resides should make decisions about the welfare of the child. These decisions, as well as decisions on the place of the child's home, should be respected by the Courts of other nations.

If your child is taken to a country that does not have any bilateral legal agreements with the UK, it is vital to instruct an experienced Family Law Solicitor. They will make contact with the British Consulate or Embassy in the country your child has been taken to and also work with local Solicitors to try and negotiate a return.

If possible, it is important that you maintain an amicable relationship with the abducting parent. Do not tell them you are working with a Solicitor to get your child returned to the UK. Ensure as many communications as possible are made by email or WhatsApp/text so there is a digital record of what has been said which can be used as evidence.

Final words

If your child has been abducted by their parent, while it is completely understandable, try not to panic. Please contact one of our compassionate and highly experienced international Children’s Law Solicitors immediately. They will rapidly assess the situation as quickly as possible and, if appropriate, take the legal steps required to have your child returned to the UK.