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.