The notion of a parent being able to ‘abduct’ their child is a difficult one to accept. However, in the eyes of the law, it is possible for a mother or father to be in charge illegally of the welfare of their son or daughter.
When child abduction is mentioned, people often think about a stranger snatching a child and taking them away somewhere. However, the vast majority of abduction cases involve one of the child’s biological parents.
Normally both parents will have parental rights and responsibilities for their child. Sometimes, if there has been a dispute about which parent the child should live with, a court will have made an order called a ‘residence order’ regulating where the child is to live. If the other parent removes the child from the residence parent, they can be guilty of child abduction.
Why do parents abduct their children?
There are a variety of reasons why a parent may decide they have no other option than to run off with their child. We’ll look at each of these in turn below:
- A court ruling going against them
In some circumstances a judge may rule that it’s in the best interests of the child to live with one parent over another when they’re no longer together. In any dispute between parents as to where a child should live, the court always has to look at both homes and then decide which one is going to be best for the child. The court will take many things into account, including the accommodation, friends nearby, other siblings, nearness to the school, relationship with each parent, the child’s own views.
In cases such as these, the parent who had the ruling go against them may then locate the child and illegally take them. This is obviously very distressing for the child and the parent who has been given residence. And even though the child may be with his/her biological mother or father, in the eyes of the law, that person has been refused residence for good reason, so it is classed as child abduction.
- The prospect of losing contact with the child
In some abduction cases, a parent is unable to bear the prospect of losing residence of their child, so decide to take the law into their own hands before any ruling takes place.
Any attempt to jeopardise the legal process will be dealt with by the relevant authorities and could result in a reduction or withdrawal of contact with the child, once the child and parent are tracked down.
- Being unaware of the law
When couples are going through a divorce or have recently separated, one party might decide it would be nice to take the children on holiday.
If you live in Scotland, you should be aware that The Children (Scotland) Act 1995 states that no person shall be entitled to remove a child (under the age of 16) habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of both parents, or the consent of the person with parental responsibility for the child.
People have fallen foul of this rule in the past, even when their motivations were entirely innocent. Remember that “ignorance of the law is no excuse” and it’s up to you to know the implications of any actions you take.
- They want to start a new life abroad
Another common reason behind a parent taking their child or children unlawfully is to escape to a new life abroad. For example, a father decide his children would be better off going back to his country of birth where they have lots of family around to help bring them up. He may also think that if he is successful in taking his children to another country, then it will be far more difficult for the UK authorities to locate them and bring the child back. If the country has signed the Hague Convention on the Civil Aspects of International Child Abduction, it should be possible to have the child brought back to Scotland. However, if the country is not a signatory, it can be much more difficult, or impossible.
Recent child abduction cases in the news
In the past few months there have been high profile abduction cases involving parents that have made the headlines.
We’ll start by examining the case of Rebecca Minnock and her son Ethan:
Rebecca Minnock Case
After a court had ordered that Miss Minnock’s son Ethan should live with his father, Roger Williams, Rebecca Minnock took the decision to flee her home in Somerset. She was understandably devastated by the ruling and felt that abducting Ethan was her only option.
The Court took the unusual step in this case of publicising the mother and son’s details and images in a bid to ensure they were located as soon as possible. The story made the national papers and news bulletins earlier this year.
The ruling was initially made due to what the court saw as attempts by Miss Minnock to prevent the child’s father from having contact with him as per their agreement after separating.
After 17 days on the run with Ethan, Rebecca turned herself into police and Ethan was taken to live with his father. No criminal proceedings have been taken against Miss Minnock after Mr Williams dropped an application for contempt of court charges to be brought against her. However, Miss Minnock’s mother and her mother’s partner were jailed for contempt of court after it was ruled they withheld vital information during her disappearance.
Scottish abduction case
North of the border, a case was recently heard by The Criminal Appeal Court in Edinburgh whereby a father named only as “SB” failed to have his conviction for abducting his 11 year old son quashed.
He was originally given a two year sentence for taking his son unlawfully. He had originally been told he could have contact with his children “by letterbox” twice per year. There had been a residency order for the children to live with their mother full-time.
While SB didn’t have his custodial sentence quashed, it was deemed to be “excessive” at the hearing and as such was reduced to a period of 9 months imprisonment.
There has been a lot of opinion on whether the sentence should have been quashed or not. The court when commenting on this particular case said:
“In general it is desirable that the conduct of parents in snatching their own children in defiance of a civil court order should be dealt with as a contempt of that court, rather than in a criminal prosecution. The latter course should only be used in exceptional cases where the conduct is so bad that it would be regarded by the ordinary right thinking person as criminal behaviour. The assessment of that remains a matter for the [Lord Advocate].”
It is unusual for a parent to be the subject of criminal proceedings such as these, but this should serve as a warning to other parents that if there is a court order in place, the consequences of disobeying it and taking a child in contravention of that order can be severe.
A lose/lose situation?
In abduction cases where the child/children are still allowed contact with both parents, it would appear to be a lose/lose situation is created by imposing a custodial sentence on the offender.
The cases outlined above highlight the differences between the possible outcomes. It could be argued that Miss Minnock’s behaviour was extreme enough to merit more than the proposed contempt of court charges that were later dropped.
While in the case of SB, it was the opinion of some legal professionals that his initial sentence was severe and contempt of court charges would have been a more appropriate punishment.
Below is a short overview of the article, just to recap:
- A parent can be deemed to have abducted his/her child in the eyes of the law
- In Scotland, a child under 16 can only legally be taken out of the country with the consent of both parents, or those with parental responsibility
- Reasons for parents abducting their children include a court ruling going against them, the prospect of never seeing their children again, a desire to move abroad to escape justice and start a new life and being ignorant of the laws surrounding child abduction
- A parent who abducts his/her child or children will usually face contempt of court charges rather than criminal proceedings, except in extreme case
If you need to speak to an experienced lawyer about a child abduction case, contact Fiona Rasmusen using the details below.