Sean and David Goldman Act 2014: A Guide

The Sean and David Goldman International Child Abduction and Return Act 2014:  A Guide

For Hugo – in the month of the third anniversary of your abduction to Japan

November 2014

 

Introduction

On 1 August 2014 I wrote that I would prepare a proper commentary on the Sean and David Goldman International Child Abduction and Return Act 2014 (‘the Act’).  The full text of the Act, as enacted, can be read here; the information set out below, however, assumes no prior knowledge of the provisions.  This article sets out the purpose of the Act, how it seeks to put into effect that purpose and it concludes with some remarks on the likely impact of the provisions.

This article, dedicated to my son to mark the passage of the third year following his abduction, has been placed on the ‘Materials’ page of this blog so that it can be seen more easily by future readers.  The version on the ‘Materials’ page has been slightly abridged.  The introduction has been amended and the postscript removed, as both contained blog specific material, and a reference to my own case in the body of the text itself has been taken out.

Purpose

The preamble to the Act reads as follows:

To ensure compliance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction by countries with which the United States enjoys reciprocal obligations, to establish procedures for the prompt return of children abducted to other countries, and for other purposes.

A fuller rationale can be found in the ‘Findings’, ‘Sense of Congress’ and ‘Purpose’ sections of the Act, essentially a list of points that gave rise to the passage of the legislation in the first place.  A feature of American legislative drafting is that Acts are a great deal more descriptive than other common law jurisdictions; the provisions also provide a real and practical overview of the scope of the problem of international parental child abduction, the extent of the problems caused by which is something which is only apparent to those unfortunate people caught up in it.  For this reason, the ‘Findings’, ‘Sense of Congress’ and ‘Purpose’ sections warrant inclusion in full:

(a) Findings

Congress finds the following:

(1) Sean Goldman, a United States citizen and resident of New Jersey, was abducted from the United States in 2004 and separated from his father, David Goldman, who spent nearly 6 years battling for the return of his son from Brazil before Sean was finally returned to Mr. Goldman’s custody on December 24, 2009.

(2) The Department of State’s Office of Children’s Issues, which serves as the Central Authority of the United States for the purposes of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (referred to in this Act as the Hague Abduction Convention), has received thousands of requests since 2007 for assistance in the return to the United States of children who have been wrongfully abducted by a parent or other legal guardian to another country.

(3) For a variety of reasons reflecting the significant obstacles to the recovery of abducted children, as well as the legal and factual complexity involving such cases, not all cases are reported to the Central Authority of the United States.

(4) More than 1,000 outgoing international child abductions are reported every year to the Central Authority of the United States, which depends solely on proactive reporting of abduction cases.

(5) Only about one-half of the children abducted from the United States to countries with which the United States enjoys reciprocal obligations under the Hague Abduction Convention are returned to the United States.

(6) The United States and other Convention countries have expressed their desire, through the Hague Abduction Convention, to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.

(7) Compliance by the United States and other Convention countries depends on the actions of their designated central authorities, the performance of their judicial systems as reflected in the legal process and decisions rendered to enforce or effectuate the Hague Abduction Convention, and the ability and willingness of their law enforcement authorities to ensure the swift enforcement of orders rendered pursuant to the Hague Abduction Convention.

(8) According to data from the Department of State, approximately 40 percent of abduction cases involve children taken from the United States to countries with which the United States does not have reciprocal obligations under the Hague Abduction Convention or other arrangements relating to the resolution of abduction cases.

(9) According to the Department of State’s April 2010 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, parental child abduction jeopardizes the child and has substantial long-term consequences for both the child and the left-behind parent.

(10) Few left-behind parents have the extraordinary financial resources necessary—

(A) to pursue individual civil or criminal remedies in both the United States and a foreign country, even if such remedies are available; or

(B) to engage in repeated foreign travel to attempt to obtain the return of their children through diplomatic or other channels.

(11) Military parents often face additional complications in resolving abduction cases because of the challenges presented by their military obligations.

(12) In addition to using the Hague Abduction Convention to achieve the return of abducted children, the United States has an array of Federal, State, and local law enforcement, criminal justice, and judicial tools at its disposal to prevent international abductions.

(13) Federal agencies tasked with preventing international abductions have indicated that the most effective way to stop international child abductions is while they are in progress, rather than after the child has been removed to a foreign destination.

(14) Parental awareness of abductions in progress, rapid response by relevant law enforcement, and effective coordination among Federal, State, local, and international stakeholders are critical in preventing such abductions.

(15) A more robust application of domestic tools, in cooperation with international law enforcement entities and appropriate application of the Hague Abduction Convention could—

(A) discourage some parents from attempting abductions;

(B) block attempted abductions at ports of exit; and

(C) help achieve the return of more abducted children.

(b) Sense of Congress

It is the sense of Congress that the United States should set a strong example for other Convention countries in the timely location and prompt resolution of cases involving children abducted abroad and brought to the United States.

(c) Purposes

The purposes of this Act are—

(1) to protect children whose habitual residence is the United States from wrongful abduction;

(2) to assist left-behind parents in quickly resolving cases and maintaining safe and predictable contact with their child while an abduction case is pending;

(3) to protect the custodial rights of parents, including military parents, by providing the parents, the judicial system, and law enforcement authorities with the information they need to prevent unlawful abduction before it occurs;

(4) to enhance the prompt resolution of abduction and access cases;

(5) to detail an appropriate set of actions to be undertaken by the Secretary of State to address persistent problems in the resolution of abduction cases;

(6) to establish a program to prevent wrongful abductions; and

(7) to increase interagency coordination in preventing international child abduction by convening a working group composed of presidentially appointed and Senate confirmed officials from the Department of State, the Department of Homeland Security, and the Department of Justice.

Framework

The Act seeks to achieve these objectives by requiring different parts of the federal government to take action in specified circumstances against countries that, in effect, harbour abducted children; there are some exceptions when these actions do not have to be carried out or where alternative, but commensurate, actions can be taken instead.  Actions are targeted against states that do not take robust action to put right incidences of international parental child abduction, regardless of whether the country concerned is a Convention state (i.e. a signatory to the Hague Convention), has bilateral arrangements in place with the United States to deal with these situations, or has no arrangements in place at all.  Duties are imposed on the Department of State[i] and the Secretary of State.[ii]  There are, in addition, some general provisions designed to prevent abductions occurring in the first place.[iii]  Each of these sets of mechanisms will be addressed in turn below.

Title 1 – Department of State actions

The first substantive duty set out in the Act is a requirement that the Secretary of State produce, by 30 April each year, an Annual Report on Child Abduction.  This is to be submitted to the relevant congressional committees[iv] and posted on the State Department’s website.[v]  The report must include a list of countries in which, over the course of the year covered by the report, there was 1 or more cases of abduction[vi] in relation to a child whose habitual residence is the United States.  It matters not whether procedures are in place, whether through the Hague Convention or by other means, for resolving such disputes; the legislation therefore extends to all countries. Nor does it matter whether, if the country concerned is a Convention country, proceedings under the Convention have been issued or not.

For countries on the list where there are 5 or more pending cases in any given year, there are further requirements.  In these cases, there is a requirement to, amongst other things, specify the number of new cases that arose in the course of the year under report; a requirement to specify how many abduction and access cases[vii] were reported and were not reported (and, where this was the case, why) to the country’s Central Authority; and the number of unresolved cases as at the year’s end, how long they have been outstanding for and the reason why they are outstanding (e.g. the child has not been located, no action taken at all, etc).  There is also a requirement to provide a statistical breakdown by country by reference to countries which are Convention countries, countries where there are bilateral or other procedures to deal with these cases and countries where there are no protections in place at all.

Section 101 (b) (4) and (5) contains requirements to ‘name and shame’ countries which, if Convention countries or countries where there are bilateral arrangements, ‘have failed to comply with any of their obligations’ as well as providing for ‘a list of countries demonstrating a pattern of noncompliance[viii] and a description of the criteria on which the determination of a pattern of noncompliance for each country is based.’  The report also sets out a requirement to explain what diplomatic steps have been taken to encourage non-Convention states to join the Convention or to at least sign up to bilateral arrangements.  Section 101 (b) (9) makes express reference to the requirement to provide information about efforts taken to resolve cases of abduction prior to a Convention country becoming a Convention country.  Abducted children will not be named in the report unless the left behind parent consents.[ix]  This is an important caveat as, in effect, a left behind parent, alone, does have the option of publicising a case.

Section 102 of the report sets out duties specifically attached to the office of the Secretary of State.  Of particular note is the requirement to ‘designate at least 1 senior official in each such mission, at the discretion of the Chief of Mission, to assist left-behind parents from the United States who are visiting such country or otherwise seeking to resolve abduction or access cases.’[x]  There is a further requirement ‘to develop and implement written strategic plans for engagement with any Convention or non-Convention country in which there are 5 or more cases of international child abduction.’[xi]  This theme is taken forward in section 103 (a) (1) which states that:

Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall initiate a process to develop and enter into appropriate bilateral procedures,[xii] including memoranda of understanding, as appropriate, with non-Convention countries that are unlikely to become Convention countries in the foreseeable future, or with Convention countries that have unresolved abduction cases that occurred before the Hague Abduction Convention entered into force with respect to the United States or that country.

Of greater importance still as the next sub-section, entitled ‘prioritisation’:

In carrying out paragraph (1), the Secretary of State shall give priority to countries with significant abduction cases and related issues.

Title 2 – Secretary of State actions

Section 201 (a) states in terms that:

It is the policy of the United States—

(1) to promote the best interest of children wrongfully abducted from the United States by—

(A) establishing legal rights and procedures for their prompt return; and

(B) ensuring the enforcement of reciprocal international obligations under the Hague Abduction Convention or arrangements under bilateral procedures;

(2) to promote the timely resolution of abduction cases through 1 or more of the actions described in section 202; and

(3) to ensure appropriate coordination within the Federal Government and between Federal, State, and local agencies involved in abduction prevention, investigation, and resolution.

Section 201 (b) goes on to impose duties on the Secretary of State where an abduction or access case involving a child previously of habitual residence in the United States has been outstanding for 12 months or more.[xiii]  In such a situation, and where the Secretary of State determines that the country concerned has ‘failed to take appropriate steps to resolve the case’, the Secretary of State should, ‘as expeditiously as practicable’:

  • direct the Chief of Mission in that foreign country to directly address the resolution of the case with senior officials in the foreign government; and
  • take 1 or more of the actions described in subsections (d) and (e) of section 202 of the Act.

Subsection (d) provides for the following actions:[xiv]

(1) a demarche;

(2) an official public statement detailing unresolved cases;

(3) a public condemnation;

(4) a delay or cancellation of 1 or more bilateral working, official, or state visits;

(5) the withdrawal, limitation, or suspension of United States development assistance in accordance with section 116 of the Foreign Assistance Act of 1961 […];[xv]

(6) the withdrawal, limitation, or suspension of United States security assistance in accordance with section 502B of the Foreign Assistance Act of 1961;[xvi]

(7) the withdrawal, limitation, or suspension of assistance to the central government of a country pursuant to chapter 4 of part II of the Foreign Assistance Act of 1961 ([…] relating to the Economic Support Fund); and

(8) a formal request to the foreign country concerned to extradite an individual who is engaged in abduction and who has been formally accused of, charged with, or convicted of an extraditable offense.

Subsection (e) provides that the Secretary of State may substitute ‘commensurate action’ where this is in fact ‘commensurate’ in nature and where this would ‘substantially further’ the purposes of the legislation.

Title 3 – Preventing International Child Abduction

Section 301 inserts new provisions into the Homeland Security Act 2002.[xvii]  The new provision sets out requirements for the establishment of a joint programme between the Secretary of State, the US Customs and Border Protection, the Attorney General and the FBI which:

  • seeks to prevent a child […] from departing from the territory of the United States if a parent or legal guardian of such child presents a court order from a court of competent jurisdiction prohibiting the removal of such child from the United States to a CBP Officer in sufficient time to prevent such departure for the duration of such court order; and
  • ‘leverages’ other existing authorities and processes to address the wrongful removal and return of a child.

Created also is a requirement of ‘inter-agency co-ordination’.  This is to be given effect to by the establishment of a working group ‘to prevent international parental child abductions’.  Appointments to it are to be made by the President, subject to approval by the Senate. The group will be chaired by the Secretary of State and comprise of officials drawn from the Departments of State, Homeland Security, Justice and Defence.

Section 302 makes provision for the training of overseas judiciary with regard to international parental child abduction in respect of countries which have a significant number of unresolved abduction cases or countries which have been designated as having a pattern of non-compliance.

Likely impact

What, then, of the impact?

Dealing with the positives first, the passing of this Act is a positive step in the sense that, for the first time, primary legislation has been brought to bear on the problem of international parental child abduction.  Whilst there are some exceptions set out within the Act, these seem to be common sense and limited and, certainly in the context of Japan, are not such that they would frustrate the raison d’etre of the Act. The use of primary legislation will also serve to reinvigorate diplomatic efforts by giving the issue a greater and, crucially, ongoing prominence that it has perhaps not yet enjoyed.

Dealing with the negatives, the Act cannot, and does not purport to, solve abduction cases after they have arisen.  It cannot do so.  The difficulty with this law is a simple one:  it seeks to control the conduct of private individuals by pressurising the country as a whole and its government.  Ultimately it will have to be for local courts, but only where they have the power and inclination to do so, to put right the actions of the private individuals concerned.  If the wider state itself is not convinced by the position being advanced by the American government, it will resist it and will not lose domestic face in doing so – quite the reverse is possible in fact.  Yet, the Act recognises its own limitations and there is some indication that it is seeking to pre-empt these shortcomings.  Note, for example, the reference to extradition – can we expect to see a greater use of prosecution as a tool in an area that is generally seen as a matter of civil control?  That would put pressure on the individual but would not of itself result in the return of the child. It also presupposes that extradition arrangements are in place and that local judges will act on an extradition application.  Much more welcome is the provision for training of overseas judges.  This is a very positive development but, again, it presupposes that local judges have the power to intervene – they are unlikely to if the country concerned is a non-Convention one – and there are unlikely to be sufficient resources for this to have an impact any time soon.

There is one aspect of the Act that is very welcome from a purely practical standpoint.  Left behind parents are, by definition, cut off from their child or children in their own country, often thousands of miles away from the child or children concerned.  They are cut off in a very real sense.  The country that harbours their children is a foreign one and is unlikely to have any practical or legal obligations towards the left behind parent.  People who find themselves in this situation are left with only two options that are capable of being pursued ‘on the ground’:  legal action or taking steps through their embassy. Legal action is fraught with difficulty, expensive and will result in probable failure – certain failure in the case of Japan – so that leaves the option of trying to take steps through the left behind parent’s local embassy.  Embassies have been reluctant to do anything substantive on an ongoing basis.  They might conduct one consular visit and might, if the left behind parent is fortunate, try and find out information in time of national emergency/disaster but little, if anything, beyond this.  There is an obvious reluctance to get involved on an ongoing basis. As the left behind parent is not resident in the country of abduction, there seems to be a view that consular services should be the preserve of nationals present in the country only.  Yet, even that view is right, it ignores the fact that the child or children concerned will be nationals entitled to consular assistance. The Act, as set out above, seeks to address this.  The Act imposes a wide duty ‘to assist left-behind parents from the United States who are visiting such country or otherwise seeking to resolve abduction or access cases’ (emphasis added).  The duty extends to left behind parents in the States itself and is not in any way limited in terms of what assistance is available.  This is an excellent step forward for American citizens and it is hoped that European and other countries will follow.  Speaking from my own experience, just an annual update prepared by the British Embassy in Japan about my son’s circumstances would be hugely welcome.  It could easily be dealt with by telephone/email/internet and would not have to involve a visit to my son so the cost in terms of public funds and time in doing so would not be high. As things stand, I feel an encumbrance on those occasions when I have had to contact the Embassy in Japan.

The Act is not, of course, specifically concerned with Japan but it is fair to say that, had it not been for the publicity surrounding cases involving abduction of children to Japan, this law might not have seen the light of day in its present form.  Although the Sean Goldman case itself concerned Brazil, many if not most of the cases which have received the most publicity in the United States have involved Japan.  That is directly reflected in a number of specific provisions in the Act.  Note, for example, section 101 (d) concerning military personnel, of which there are an abundance in Japan,[xviii] and also section 101 (b) (9) speaks of the need to address those cases, such as mine, not covered by the Hague Convention due to the fact that the abduction took place prior to the entering into force of the Hague provisions. The experience of Japan has not merely informed the debate giving rise to this legislation, it has also informed the specific measures that have been adopted by Congress.

The Act was clearly designed to get to grips with the fact that the Hague Convention is not a complete solution to the problem of international child abduction, even in cases where the country that the child has been abducted to is a signatory.  The obvious difficulty with the Act is that it is concerned with state-to-state action. Yet the Hague Convention, whilst a creature of international law, seeks to put right the wrongful actions of private individuals.  Whilst child abduction is often state-tolerated, it is not state instigated.  Despite this obvious limitation in what the legislation can achieve, the Act remains welcome because it recognises the scope of the problem and seeks to do something practical about it.  The United States is the only country that has sought to legislate over this problem in such a manner, other countries seemingly to prefer the failed diplomatic route. What can be expected is that the issue of international parental child abduction will be pushed much higher up the list of diplomatic discussion points in cases involving American children and, as such, these will be matters that will be harder for harbouring countries to ignore.

Postscript

My representations to the Foreign Office about this law, sent on 16 August 2014, have gone unanswered, despite a reminder sent 2 months’ afterwards.  That really goes to show how much more seriously this issue is taken in the United States.  It is not the sort of issue that can be put on the back burner as once a child has been abducted they will fairly quickly assimilate into a life apart from their other parent making a return far less desirable.

Endnotes:

[i] In ‘Title 1’ (i.e. Part 1) of the Act.

[ii] In ‘Title 2’ of the Act.

[iii] In ‘Title 3’ of the Act.

[iv] s. 3 (7):  the Senate Foreign Relations Committee and the House Foreign Affairs Committee.

[v] s. 101 (a).

[vi] An ‘abduction case’ has the following definition ascribed to it by point (3) of the definitions section in the Act:

The term abduction case means a case that—

  • has been reported to the Central Authority of the United States by a left-behind parent for the resolution of an abduction; and
  • meets the criteria for an international child abduction under the Hague Abduction Convention, regardless of whether the country at issue is a Convention country.

[vii] An ‘access case’, as distinct from an ‘abduction case’ is described at point 4 of the definition section as: ‘…a case involving an application filed with the Central Authority of the United States by a parent seeking rights of access.’

[viii] The meaning of a  ‘pattern of non compliance’ is, again, set out in the definitions section (at point 19) to cover the following:

  • In general

The term pattern of noncompliance means the persistent failure—

(i) of a Convention country to implement and abide by provisions of the Hague Abduction Convention;

(ii)of a non-Convention country to abide by bilateral procedures that have been established between the United States and such country; or

(iii)of a non-Convention country to work with the Central Authority of the United States to resolve abduction cases.

(B)Persistent failure

Persistent failure under subparagraph (A) may be evidenced in a given country by the presence of 1 or more of the following criteria:

(i)Thirty percent or more of the total abduction cases in such country are unresolved abduction cases.

(ii)The Central Authority regularly fails to fulfil its responsibilities pursuant to—

(I)the Hague Abduction Convention; or

(II)any bilateral procedures between the United States and such country.

(iii)The judicial or administrative branch, as applicable, of the national government of a Convention country or a bilateral procedures country fails to regularly implement and comply with the provisions of the Hague Abduction Convention or bilateral procedures, as applicable.

(iv)Law enforcement authorities regularly fail to enforce return orders or determinations of rights of access rendered by the judicial or administrative authorities of the government of the country in abduction cases.

[ix] S. 101 (c).

[x] S.102 (1) (B).

[xi] S.102 (2).

[xii] Bilateral procedures include provisions relating to the identical of domestic authorities and courts that will determine and adjudicate upon abduction and access cases and the implementation of procedures to ensure the immediate enforcement of an order for the return of an abducted child, including steps to find that child, within 6 weeks of an application being made. See generally s.102 (2) (b).

[xiii] A delay, of up to a further year, may be permitted before taking action where this ‘will substantially assist in resolving the case’:  s. 102 (2).

[xiv] There are some fairly limited exceptions to these actions, and those in subsection (e), being deployed if so to do would ‘prohibit or restrict the provision of medicine, medical equipment or supplies, food, or other life-saving humanitarian assistance’:  s. 102 (2) (g).  There are further exceptions where the Secretary of State determines that the country concerned has ‘satisfactorily resolved’ the abduction cases giving rise to the taking of the actions; or where the ‘pattern of non compliance’ has ended; or where there are national security considerations that justify a waiver – although the Secretary of State must account to Congress in these situations. See s.204.

[xv] This prohibits the giving of US aid to governments that have engaged in a consistent pattern of human rights violations.

[xvi] This prohibits US provision of security assistance or crime control equipment to countries with poor human rights practices unless there are said to be extraordinary circumstances.

[xvii] A new s.433 is inserted into Title 4 of the 2002 Act.

[xviii] Indeed, the problem of international parental abduction in Japan can be traced back to the time of the Douglas MacArthur occupation since when large numbers of American service personnel have been based in Japan.

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Happy 6th Birthday

Hello Hugo

You are 6 years’ old today. Happy 6th birthday my (not so) little man.  Though not by design, this is also the 100th post on this blog.

You will, in your 6th year, start school in Japan – in about 5 months’ from now I believe.  I hope that it won’t be too much of a change for you as you’ve spent some time going to nursery whilst living in Japan as I understand it.  Its difficult to say much about this sort of thing to you because my primary school days were 30-odd years ago, although I do remember the first day, and also because schooling in Asia, with its emphasis on rote learning, is very different to that in the UK.  Enjoy your last  birthday ‘free’ of the educational system – you will probably be in your early twenties when you next have a birthday at which you are not in full-time education.

I hope that you get everything that you will have been dreaming of today; please see below for photographs of the card presents that I mailed to you in Japan.  Among the usual stuff that (I think) a 6 year old boy would be thrilled with, these presents include a special gift as you are a bit older now:  a commemorative set of coins issued by the Royal Mint (Ltd) in the UK to mark the year 2014, in particular the 100th anniversary of the start of the First World War.  The actual anniversary was on 28 July 2014 but, as I posted on the 11th of this month, November 2014 seems to be the focal point at which the 100th anniversary is being recognised, in the UK anyway, due to the fact of Armistice Day being this month.  The gift is also, I hope it will turn out, a fitting one for you because the Royal Mint of Japan has one of its two branches in the very ward that (I believe) you are still living in in Hiroshima, Saeki-ku.  No doubt, as it is just round the corner from you, you will go there on a school trip or something like that one day in the not too distant future and will see for yourself – its grounds are only open for one week a year in the spring as people visit to see the spring blossom trees there.

Happy birthday, little man – have a nice day there.

Birthday 2014 (2)

Your 2014 birthday card

Birthday 2014 (1)

Your 2014 birthday presents

2014 United Kingdom Commemorative Proof Coin Set

Commemorative coin set for 2014 (commercial photograph)

Birthday 2014 mailing receipts

Post Office shipment receipts

Law Commission child abduction proposals

The Law Commission is an England and Wales body that advises the government on possible changes to the law; many of its recommendations are adopted by the government although there can be a significant delay in changes being introduced owing to the limited time available in the parliamentary timetable. In a report published on 20 November 2014, the Law Commission, as part of its ‘Simplification of Criminal Law’ Project, made proposals in relation to offences of kidnapping.  These proposals extended to reform of provisions contained within the Child Abduction Act 1984.  The process by which the Commission operates is that it initially issues a consultation paper on reform ideas and invites comments on this from people who are interested.  It then formulates substantive proposals.  The consultation paper was issued on 27 September 2011 with a deadline for responses of 27 December 2011, although the project’s terms of reference were only extended to cover issues of child abduction in July 2013. In relation to child abduction, the Law Commission proposes in summary that:

1.9 In the case of R (Nicolaou) v Redbridge Magistrates’ Court it was held that the offence under section 1 of the Child Abduction Act 1984 (the abduction of a child by his or her parent or guardian) does not extend to a case where the child was lawfully removed from the United Kingdom but retained for longer than the permitted period in a foreign country. This appears to be a gap in the law, and in July 2013 the terms of reference of the kidnapping project were extended to include this problem. We recommend the offence of child abduction be amended so as to criminalise wrongful retention in addition to the initial act of abduction. 1.10 Further, in the case of R v Kayani Lord Judge CJ (as he then was) stated that the sentencing options in relation to child abduction are inadequate. We recommend that these sentences are increased to meet this concern.

In justifying the sentencing proposals, the Commission reported that:

2.20 At present the maximum sentence for child abduction is seven years, while the maximum sentence for kidnapping is life imprisonment. As pointed out by the Lord Chief Justice, “this wide discrepancy seems illogical”. An intermediate figure such as 14 years would seem appropriate.

In justifying the need to change the law to make it an offence to unlawfully retain a child away from the UK (as opposed to the initial abduction), the Commission noted that, under the current law, this would at best amount to a contempt of court if there were a family order preventing removal. It went on to report that:

2.23 The first question to consider is a matter of policy: is it desirable to have an additional or extended offence?

2.24 That decision should be made in the knowledge that, as a result of arrangements between the UK and several other countries, adequate powers for the recovery of the child already exist in some cases in civil law. The numerous treaties are complex, but in summary, provided that the child has been taken to a country which is a signatory to the Hague Convention then there is an existing process by which the child’s recovery can be sought. In practice the legal decision to return the child, made by the court in the country where the child has been taken or retained, is a matter for the court dealing with the Hague Proceedings. In some cases attempts can be made to recover the child through diplomatic channels.

2.25 It is generally considered that disputes between parents about where a child should live are better resolved through the civil rather than the criminal law. Any criminal offence should be confined to actions which frustrate the civil court’s process. The justification for the offence under section 1 of the Child Abduction Act 1984 is that the child is outside the jurisdiction of the civil court, making it harder for that court to make and enforce its decision about where the child should live.

2.26 For this reason, the criminal proceedings are not concerned with the substantive question of where the child should eventually live, and the civil and criminal processes operate quite independently of each other. Where a person takes a child abroad, proceedings under the Hague Convention may recover the child but are not designed to recover the abductor. Conversely criminal proceedings may recover the abductor but are not designed to recover the child.

2.27 Following these principles, there is no objection to extending the offence under the 1984 Act to include the wrongful retention of a child. Wrongful retention, just as much as wrongful abduction, frustrates the process of the civil court by keeping the child out of its jurisdiction. Nor will proceedings for contempt of court always be an adequate remedy. The situation can arise equally when the child is taken abroad with the consent of one parent and no court order exists.

2.28 The proposed reform of the 1984 Act would be designed not to impact on the existing civil procedures. If the retention of the child is made an offence, civil procedures for the recovery of the child and criminal procedures for the arrest and punishment of the abductor could take place independently of each other just as they do now in the case of an unlawful abduction. Nor would such reform impact on the existing mechanism for dealing with threatened abduction by arresting the would-be abductor for attempted child abduction, or by issuing a port alert, without the need for civil proceedings.

2.29 In conclusion, we recommend expanding the scope of section 1 of the 1984 Act to cover retention and see no technical difficulty in doing so.

The government has yet to respond to the proposals.

Further Reading:

“Child abduction law proposals to close wrongful retention loophole”, BBC News, 21 November 2014

Osaka Family Court orders child back to Sri Lanka

It seems that my scepticism the other day about whether a Japanese court would, if challenged to do so, have the courage to return an abducted child home might have been misplaced or, at the very least, uttered in haste.  I do not believe my scepticism was at all unreasonable, however.

On 19 November 2014, the day before the third anniversary of my son’s abduction to Japan, the Osaka Family Court directed that a 4 year old girl be returned to Sri Lanka under the provisions of the Hague Convention.  Unlike the case referred to the other day, this case was a contested one.  The child has not yet been returned as the decision was only made this week and is in any event appealable.  I say that my scepticism was not unreasonable because the facts of this case clearly showed that there was not much else that the court could rationally decide as the child’s country of habitual residence was, clearly, Sri Lanka.  She was in the education system there and had been taken to Japan for “a holiday”.  The case was, in legal parlance, “strong on its facts” which meant that there was only one rational outcome and no room for judicial manoeuvre.  It remains to be seen what will happen when a less clear-cut case of abduction comes along and whether judges in Japan will seek to resist returns on the basis of the exceptions as set out in the Convention, as enacted in Japan.  Still, the news must be an enormous relief to the left behind parent involved.

There are reports about the Sri Lankan case in the Japan Times here (dated 19 November 2014), the Asahi Shimbun here (also 19 November 2014) and the Colombo Gazette here (20 November 2014).  There is also a piece on the Russian Legal Information website here.

Lord Chief Justice’s remarks on international child abduction

54.      The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life, whether at common law, or in accordance with Article 8 of the Convention, is misconceived. In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate. There is a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.

55.      These are offences of great seriousness, with the additional complexity arising just because the abducting parent is the person best able to provide the children with a home.

56.      Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. On reflection, we can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered. Indeed in one sense, if the consequence is that the children wish to have nothing to do with the parent from whom they have been abducted, and have nowhere else to go, a further consequence of the abduction itself is the hardship then endured by the children.

57.      These offences wholly achieved their intended purpose. The mothers have suffered extreme emotional hardship, and although the children themselves are unaware of it, they have been deprived of one of the foundations for a fulfilling life. The periods of abduction were prolonged, many years in duration, and the relationship with the mothers was irremediably damaged. In the case of the mothers, the hardship will be life long. Given these stark facts, making every allowance for the impact on maturing teenage children of the imprisonment of their father in the light of their current living and educational arrangements, any damage to their welfare is a direct consequence of his actions. This does not justify a reduction in what would otherwise be entirely appropriate sentences.

Lord Judge, the (then) Lord Chief Justice of England and Wales, in The Crown v. Kayani and The Crown v. Solliman [2011] EWCA Crim 2871.

The above extract is taken from the judgment in two criminal child abduction cases that reached the Court of Appeal.  The cases involved fathers who had abducted children to Pakistan.  The appeals were concerned with appropriate sentencing in such cases and, in particular, whether the inevitably negative impact on the abducted children flowing from the imprisonment of the abducting parent/default child-carer was a relevant consideration in determining whether or not a custodial sentence should be imposed.  The Court decided that it was not, such was the gravity and nature of the offences, meaning that the wrongdoers could not benefit from their wrongdoing by securing a lighter sentence.

These appeals were argued on Thursday 24th November 2011, a mere 4 days after my son was abducted to Japan on Sunday 20th November 2011, itself 3 years ago to the day this day.

Further reading:

1.  Text of full judgment (UK Judiciary website – archive);

2.  Text of full judgment (Bailii website);

3.  Official case summary (UK Judiciary website – archive);

4.  Case comment on http://www.familylaw.co.uk  website.

Law Soc 1

The Law Society building, Chancery Lane, London, UK (photograph taken by author on Saturday 20 September 2014)