Somewhat curiously the provisions of the Child Abduction Act 1984 which statute concerns the removal of a child/ren from the UK in certain circumstances differ considerably between the Law of England and Wales, and the law of Scotland.
Efforts have been made to close a perceived loophole in Scots law which has arisen from this inconsistency, which is thought to be the cause of a significant increase in international child abduction cases from Scotland. As a result the issue of international parental child abduction is now firmly on the Scottish Government’s legislative agenda.
It should be noted that we are concerned with the situation where a child is abducted by a parent or another family member rather than a stranger which is another matter entirely.
The Law in England and Wales
In England and Wales “a person connected with a child” which includes a parent or guardian commits an offence by taking or sending the child from England or Wales out of the United Kingdom without the consent of the other parent. Certain exceptions exist where the person who has removed the child believes that the other person has consented or has taken all reasonable steps to communicate with the other person but has been unable to communicate with them. However, generally speaking if one parent removes a child from England and Wale without the other’s consent, that parent is guilty of a criminal offence. The person found guilty of such an offence shall be liable on summary conviction to imprisonment for a term not exceeding six months or a statutory fine, or on conviction on Indictment to imprisonment for a term not exceeding seven years.
The Law in Scotland
Should a parent remove a child from Scotland outwith the UK without the other parent’s consent, they will only be considered to have committed a criminal offence if there is an order of court awarding “custody” of the child to any person or an order prohibiting the removal of the child from the United Kingdom. Only if there is such an order, and the order is breached would the other parent be able to phone the police and the police would be able to act. Penalties are also somewhat lighter in that a person found guilty of such an offence in Scotland would be liable on summary conviction to imprisonment for a term not exceeding three months or a statutory fine, or conviction on Indictment to imprisonment for a term not exceeding two years or to a fine or both.
Whilst in certain circumstances, a parent in Scotland may have the foresight to seek and secure the necessary protective court orders in advance, parents are unlikely to be aware that an abduction is on the horizon. Flights out of the country can be booked with the minimum of fuss and the child spirited away. It is likely that the other parent will only become aware of the abduction too late, and the police will be powerless to take action immediately.
Timely advice is vital and closure of this inexplicable loophole can only be welcomed.
If you would like to discuss this with a member of the Family Law Team, contact us today.