Step forward for campaign to close legal ‘loophole’ on child abduction in Scotland | HeraldScotland

27th May 2018
Step forward for campaign to close legal ‘loophole’ on child abduction in Scotland
Peter Swindon @PeterSwindon
Senior reporter, Sunday Herald

CAMPAIGNERS against abduction of children by a parent have hailed a Scottish Government consultation on a change in the law as a “positive development”.
Scottish minsters are under pressure to close a “loophole” which means a parent can’t always be prosecuted if they take a child overseas from Scotland without the consent of the other parent.
If a child is taken overseas from England and Wales it is a criminal offence under the Child Abduction Act 1984 but the law only applies in Scotland if a court order preventing travel is already in place.

Lawyer Yousif Ahmed, from Glasgow, is leading a campaign to remove the requirement for a court order so that Scotland’s law on child abduction is brought into line with the rest of the UK.
A meeting between campaigners and Scottish Government officials was held this week after it was announced that the so-called loophole will be examined as part of a wider consultation on family law reform.
Ahmed said: “The current Scottish framework fails to protect children and parents in Scotland and far too many children and parents have been let down by a loophole that fails to protect them from this abuse.
“Scottish ministers need to take action to address this ongoing problem. In a joint effort, we have highlighted in great detail the various shortcomings and failures that exist in the Scottish framework and the changes that are needed.
“The Scottish Government has heard the voice of the campaign and has taken our message on board. We are very pleased that as a result of our campaign work, it has now issued a consultation on proposals to reform the law. This is a fantastic achievement within a short space of time.”
Scottish Government figures show the number of international child abduction cases have risen over the last 10 years, from two cases in 2007 to 20 cases in 2016.
The government consultation on the Children (Scotland) Act 1995 is “seeking views on how civil and criminal child abduction by parents can be further prevented”.

The consultation states there may be a need for a “minor change” to Section 2 of the 1995 Act which would mean a court order is no longer required for it to be an offence to remove a child from Scotland without appropriate consent.
Ahmed, who is director of legal services at Cannons Law Practice, added: “I would ask everyone to get behind this extremely positive development by encouraging the Scottish Government to implement the proposals set out in the consultation and effect the positive legislative change that is needed in Scotland.
“Together, we can make a difference and achieve a positive and lasting change that will help to protect children and parents all across the country from this abuse.”
A Scottish Government spokesman said: “There is already legislation in place making it an offence in Scotland for a person connected with a child under 16 to take or send the child out of the UK without the appropriate consent where a court order is in place awarding custody of the child to another person or prohibiting removal of the child from the UK.
“Depending on the circumstances of the case, someone suspected of child abduction may also be charged with the common law offences of abduction or plagium.
“The consultation on the Children (Scotland) Act 1995 seeks views on a range of issues, including whether to change the law in Scotland on parental child abduction and we welcome the constructive contribution from campaigners on this issue.”

 

Source:  “Step forward for campaign to close ‘legal loophole’ on child abduction in Scotland”,  The Sunday Herald, 27 May 2018

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The Scotsman: “Number of Scots children abducted by overseas parents soars”

Number of Scots children abducted by overseas parents soars Campaigners have called for a change in Scots law to protect children

Scott Macnab

Published: 06:00 Friday 03 November 2017

Campaigners have stepped up calls for a change in Scots law to tackle international abductions of children by a parents overseas after new figures revealed a soaring number of cases in the past decade. Dozens of new “international abduction” cases happen every year in Scotland having previously stood in single figures in 2007. The practice has been branded “child abuse” by campaigners who say there is a “stark difference” between Scotland and England over the issue. It is a criminal offence south of the Border. In Scotland, police cannot act until a court order has been obtained – which can take anywhere between a day and a week. The figures revealed by justice secretary Michael Matheson in a Parliamentary answer yesterday shows that there were 33 cases parental child abduction for Scotland in 2016. Although this is down from the 41 cases recorded in 2015, it is nonetheless a marked increase from the eight cases recorded in 2007. Most involved cases of children being taken out of Scotland, which reached a new high of 20 last year – up from two in 2007.  India, Australia, the USA, Italy and Poland are among the countries where children have been taken, according to support charity Reunite International. Solicitor Yousif Ahmed is now calling for a change in law which would mean parents not needing to go through the lengthy process of securing a court order before police can act.  “That’s not fit for purpose – all it takes is a few clicks of a mouse button to book a same-day flight and the child can potentially be gone and lost forever,” he said. Many parents won’t be aware that an abduction is looming which means they won’t be in a position to secure an interdict.  Mr Ahmed is to meet Scottish Government officials to push for change.  Vicky Mayes of Reunite International said it’s a particular problem for Scots parents who fear an abduction may be imminent.  “It’s so stark, the difference, when you’re advising one parent in England and one parent in Scotland. There can be such a difference in what the police can do and what can be done to stop a child from being abducted and therein minimise the impact of all of this on that child.”

Read more at: http://www.scotsman.com/news/number-of-scots-children-abducted-by-overseas-parents-soars-1-4603650

 

Lawyer calls for end to ‘kidnapper’s charter’

Yousif Ahmed

A Scots lawyer is calling for an end to a loophole in the law that allows one parent to remove their child from Scotland without the consent of the other.

Yousif Ahmed, 29, is urging the Scottish government to propose changes to the law to bring it into line with rules south of the border, where such an act would be a criminal offence.

Mr Ahmed has spoke to Justice Secretary Michael Matheson and is being supported by Reunite International, a charity dealing with international parental child abduction.

Mr Ahmed, an associate with Cannons Law Practice in Glasgow, said: “With the world becoming smaller, international relationships are becoming more common but if such a relationship breaks down it is ultimately the children who may end up paying the highest price by losing all contact with a parent and their friends.

“With the exception of Scotland, the rest of the United Kingdom rightfully criCouminalises the wrongful act of parental child abduction. That is a form of deterrence firmly in place.

“Surprisingly, we do not have that deterrence here – parental child abduction is not recognised as a criminal offence unless a court order has been obtained prohibiting the removal of a child and that in itself raises various problems and issues.”

He added: “To obtain such a court order, you must have some prior knowledge of a pending or imminent abduction and go through a formal legal process which in most cases is not fit-for-purpose, nor effective for preventing parental child abduction from Scotland.

“We also have a distinct lack of protocol and practice for preventing parental child abduction where an abduction is suspected as being likely – what that means is that without a court order, there are is no scope of alerting police to put in place port alerts or red flags which can alert UK border control of a child being at risk of parental child abduction, unlike in England and Wales where a system of protocol and practice is in place to help prevent this from happening.”

Source:  “Lawyer calls for end to ‘kidnapper’s charter'”, Scottish Legal News, 24 October 2017

End of summer 2017 message

Hello Hugo

Another summer ends.  Your 6th in Japan in a row.  It’ll soon start cooling down again so no more sweltering walks to the station/school until 2018.

Here is a short UK update for you.

Today marks the 20th anniversary of the death of Diana Princess of Wales; it made news around the world at the time and there has been a lot in the media over it this summer.  I clearly remember when I found out; I was back home in Everton for the summer after the end of my first year at university.  My mum told me in the kitchen when I went down to make coffee.

As I posted yesterday, our Prime Minister is currently on a trade mission to Japan.  My repeated requests to the Foreign Office in the UK to lobby the Japanese government much harder and more publicly on the issue of parental child abduction have not to date been heeded and I fear that such issues will not be on Mrs May’s delegation’s visit.  As such I yesterday put in a freedom of information request to find out why this continues to be the case and when this will change.  I will update the blog in the coming weeks as soon as I receive a response.

I spent a couple of days with Dad up in Edinburgh, Scotland, over the late August national holiday. It is a fantastically beautiful city also with much on offer around it in the surrounding, mountainous countryside.  We concentrated mainly on the city centre but did manage to get the bus out to the Royal Yacht Britannia now moored in Leith, a coastal suburb of Edinburgh.

Dad celebrates his 89th birthday next month and everyone is meeting up, as we did last year, at the Boathouse down in Hythe to mark the occasion.  Plans are also being tentatively developed for his 90th birthday in 2018.

Less positively, both my aunt Diana and your Great Grandma have recently been diagnosed with cancers.  Diana is responding very well to treatment as it was caught early – she is expected to make a full recovery – but Grandma is still waiting for a full medical assessment.

Your UK cousin, Olly, is doing well.  He celebrated his first birthday in April and my sister returned to work at about the same time.

I have mailed you the items below in two tranches, one today and one on 24 August.  These include a genuine Edinburgh/Cashmere scarf – I tried it on before sending it to you and it is very soft and fluffy and will, I trust, help keep you warm this winter.

Scottish abduction case reaches UK’s Supreme Court

On 22 May 2015 the UK’s Supreme Court issued a decision in an international parental child abduction case called AR (Appellant) v. RN (Respondent) (Scotland) [2015] UKSC 35. The issue before the Court was whether or not it should order the return to France of two children who had been living with their mother in Scotland since July 2013.

The situation that had arisen was as follows. The children were both born in France in August 2010 and June 2013. Their father was French and their mother was British and Canadian. Up until July 2013, the family lived in France although they periodically visited the mother’s family in Scotland. In July 2013 the mother and children moved to live in Scotland. According to the father’s evidence this was for the 12-month duration of the mother’s maternity leave, the younger child having just been born. The mother said that the move away from France had intended to be permanent although no plan had been made for the period of time beyond the 12 months that was going to be spent in Scotland.

After the move took place the father would visit his family in Scotland for several days per month. The mother and children visited the father in France for a holiday in September 2013 and again in October 2013. Upon their return to Scotland after this, the mother and children moved into private rented accommodation adjacent to the maternal grandparents, having previously lived with the maternal grandparents, where they continued to live.

The couple, who were unmarried, separated on 9 November 2013 on the basis of the husband’s infidelity. On 20 November 2013 the mother applied for a residence order in relation to the two children. The father, in turn, issued proceedings under the Hague Convention on the basis that the mother’s application for a residence order amounted to a wrongful retention of the children in the UK.

The father succeeded in the Scottish Court of Session, that Court noting, in deciding in the father’s favour, that “[t]his was a French family living in France” and that the stay in Scotland was to be of “limited duration”.

On an appeal against that decision, the Inner House of the Court of Session found in the mother’s favour. The Supreme Court agreed. The original judge was, the Supreme Court found, wrong to focus entirely on whether there had been a joint parental decision to move permanently to Scotland (the original judge finding that the intention to move there was to be, as noted above, of “limited duration”. In approaching the decision on this basis, the Supreme Court concluded that the original judge failed to apply guidance given in earlier decided cases. Parental intentions, whatever these are found to be, are a relevant factor – but they are not the only one. The fact that, as the original judge found, there was no joint parental decision to move permanently to Scotland was not the end of the matter. The Court stated that “[t]he important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent”. The original judge thereby failed to consider the “abundant evidence” relating to the stability of the mother and children’s lives in Scotland and the level of integration that had occurred. The Court found that the children were habitually resident in Scotland.

Usually cases that just turn largely on their own facts in this way will not get anywhere near the Supreme Court so it is interesting that this one did.