The phrase 'international child abduction' may conjure up images of the reporting of the disappearance of Madeline McCann. The reality, however, is that parents may find themselves dealing with the civil consequences of abducting their own children in much more mundane circumstances.
Imagine a Scottish mother living in the USA with her husband, and two small children. The marriage ends, the mother decides to return to live with her parents in Scotland, where she has friends and support. She has been left penniless as a result of the breakdown of a violent relationship, so her parents send her the money for flights home. She and the children leave without telling their father, planning to let him know once they are safely in Scotland.
Imagine a Polish father living in Scotland has his children visit him for the summer holidays and decides that he would like the children to stay with him in Scotland, to improve their English. Rather than return them to Poland at the end of the summer holidays he enrols them in school and lets their mother know that, as she was happy for them to come to Scotland for the summer, he thinks it better they stay here with him.
Both these parents may be acting in their children's best interests but both may be liable to face proceedings in the Court of Session seeking an order to return the children to the 'home' country within 7 days.
If a child aged under 16 is removed from, or kept outwith, a country which is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and taken to another signatory country, without the consent of the left behind parent, then this removal or retention may be wrongful and, as such, the left behind parent can seek the assistance of their government in obtaining an order from the Scottish courts for the child to be returned.
The objective of the Convention is to return children to the country of 'habitual residence', as the courts there are best placed to make decisions regarding their welfare, such as where they should live.
Scottish courts are bound to return children forthwith if the Convention applies and less than a year has passed from the date of removal. Limited defences are available, but in the vast majority of cases it is necessary for the children to be returned to enable matters to be negotiated or litigated in the country they came from.
International child abduction is a specialised area of Family Law. Drummond Miller are very experienced in dealing with cases of this kind, for parents on both sides of the situation, and have advised in a number of cases reported in the Law Reports in recent years, including appeals. The Chambers and Partners Guide 2013 recognised this as an area in which Drummond Miller is "particularly strong". If you have any queries about international child abduction, or would like legal advice in relation to any other Family Law matter, please contact the Family Law Team.