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)

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3 thoughts on “Lord Chief Justice’s remarks on international child abduction

  1. Pingback: Osaka Family Court orders child back to Sri Lanka | hugojapan

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  3. Pingback: Law Commission child abduction proposals | hugojapan

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