Proposed amendments to child abduction legislation will have a far-reaching impact on family law, write Joanna Farrands and Helen Habershon.
The Law Commission recently published a report detailing four recommendations to change the legislation surrounding child abduction. The report is an essential step forward. Reunite, the UK charity specialising in the movement of children across international borders, has said about 40% of all cases were actually wrongful retentions.
It states that ‘as the law stands at present, children who are retained outside of the UK are not offered the level of protection afforded to children in other abusive situations’. For more than 18 months, Reunite’s Legal Working Group and the All Party Parliamentary Group on Child Abduction have been consulting with the government to make wrongful retention a criminal offence.
The recommendations are a huge step forward in supporting abducted children and left-behind parents. They are:
1. Create a statutory offence of kidnapping which is clearer and simpler than current law based on the use or threat of force to take or move the victim.
2. Replace the offence of false imprisonment with a statutory offence of unlawful detention.
3. Increase the maximum sentence for offences under sections 1 and 2 of the Child Abduction Act 1984 (CAA 1984) to 14 years’ imprisonment (from seven).
4. Criminalise child retention by parents or connected persons by amending section 1 of the CAA 1984.
The proposed amendments to legislation will have a far-reaching effect in family law. The suggested implementation of a statutory offence of unlawful detention will follow the current common law definition of false imprisonment, but also provide the opportunity to clarify the relationship between this offence and the reformed offence of kidnapping by framing it in more modern language.
The change should also make prosecution more straightforward. Of biggest impact for family lawyers are the third and fourth recommendations: increasing the maximum prison sentence; and making it a criminal offence for parents to keep children overseas in contravention of a court order, or when they do not have permission of the other parent. The latter provides a statutory solution to the current problem where it is not a criminal offence to take a child out of the country with the other parent’s consent or a court order, but then retain that child contrary to what was agreed.
There are two child abduction offences under the law. Section 1: child abduction by parents (or connected persons), committed by taking or sending a child out of the UK without the appropriate consent; section 2: child abduction by other persons, by taking or detaining a child from persons with lawful control of the child.
As mentioned, section 1 does not apply where a parent takes a child outside the UK with appropriate consent but retains the child beyond the period for which permission was given. Conversely, in the civil context, article 8 of the Hague Convention does address wrongful retention. The convention provides a civil framework for the return of children wrongfully retained abroad, yet as identified in the below case study, there is a clear gap in the CAA 1984.
The Nicolaou problem
The case of R (on the application of Nicolaou v Redbridge Magistrates’ Court  EWHC 1647 (Admin) concerned a child who had been kept in Cyprus by his father for a number of years, despite a court order allowing only a short holiday. Hague Convention proceedings found that the child had been wrongfully retained and an order for his immediate return was granted. The father avoided enforcement of the order by placing the child into hiding. A warrant was issued for the father’s arrest, and a European arrest warrant was granted.
However, the domestic warrant was quashed by the High Court. It was held that the father’s act of retaining the child did not come within the definition of section 1 of the CAA 1984, in that ‘take’ and ‘send’ do not include ‘retain’ and thus there were no criminal penalties for him. The Law Commission’s recommendations will bridge this gap in domestic laws, meaning that child abduction as an offence will be extended to include cases such as the above, where a child is lawfully removed from the UK but then unlawfully retained abroad.
In terms of criminal sanction, the third recommendation is to increase the maximum sentence from seven to 14 years for the offences under sections 1 and 2 of the CAA 1984. In R v Kayani; R v Solliman  EWCA Crim 2871, the lord chief justice held that there are cases where it is appropriate to charge a parent with kidnapping, and that previous authority to the contrary should no longer be considered good law. In this case, the lord chief justice observed that the seven-year maximum sentence for child abduction offences is inadequate and should be increased, noting that the disparity with kidnapping is illogical and fails to recognise the potentially devastating effects of wrongful parental retention. The recommendations mean that longer sentences may become more common.
Since the CAA 1984, there has been a shift in parliament’s approach towards the use of the criminal law in the context of family matters including issues such as domestic violence and forced marriage, which is a reflection of changing societal attitudes. It has become increasingly acceptable, or even expected, that the state will intervene in such situations, and it is now being recommended by the Law Commission that this be extended to child abduction.
The significant implications of this for family lawyers are threefold. First, all practitioners dealing with children matters will need to make sure they advise separated parents very clearly and carefully of the fact they may risk a criminal record if they ignore this proposed change in the law. For lawyers dealing specifically with abduction work, it is potentially an excellent extra tool to be able to use the help of the police and promote rigorous investigation in such cases and will hopefully help to secure the return of children more readily and swiftly.
Finally, and most importantly, it may influence international policies, as child abduction increases and the impact it has on both children and families is devastatingly apparent.
Joanna Farrands is a partner and Helen Habershon an associate at Barlow Robbins