Abduction in the criminal courts is dealt with differently from applications under the Hague Convention – but you need to know how both work in order to achieve the optimum result for you, the client.
Early intervention to prepare for an interview with the police can be vital. Making representations to the police and the Crown Prosecution Service can assist to avoid court proceedings. It is important to remember that if convicted in the criminal courts the result can be devastating.
A selection of typical sentencing can be found here. However, the facts of any case will be different from any other so looking for the likely sentence that will be imposed and then preparing to minimise that sentence is vital.
The result of an abduction trial could result in the mother or father being imprisoned and therefore taken away from their children.
Under the Child Abduction Act of 1984 (as amended), it is a criminal offence in England and Wales for any person connected with a child, to take or send the child out of the United Kingdom without the consent of any other person who has parental responsibility for the child. A parent who has the right to have contact with or access to a child will usually also have parental responsibility.
The term ‘connected with a child’ is defined in Section 2 of the Child Abduction Act 1984 and includes the parents or guardians of a child and anyone who has parental responsibility for the child. No offence is committed, however, where a child is the subject of a custody/residence order, if the court which made the order has consented to the child being removed from the country.
Investigating the relationships of the various parties might be important to determine whether another has parental responsibility. Of course, consent might also turn out to be an important issue.
One issue that can arise is that when a Hague Convention case is brought in England and Wales it would be normal to have an undertaking from the requesting party to effect that they will not voluntarily take part in criminal proceedings against the returning part before any order is made. Other jurisdictions take a different view of taking undertakings in this way but the failure to obtain such an undertaking might mean that representations on the point should be made early on the police and crown prosecution service as they might be persuaded to consider the issue as a factor in the question whether it is in the public interest to prosecute.