Child abduction refers to the removal or retention of a child, often by one parent, without legal authority to do so. The briefing describes the law on child abduction as it applies to children usually living in Scotland. Abduction by a parent or family member is the primary focus of this briefing.
Child abduction is the unlawful taking or retention of a child without either the consent of the other parent (or, if applicable, the other person or body with legal responsibility for the child) or without the consent of the court.
Child abduction can be by someone the child does not know, but it is commonly by a parent, or sometimes by another family member or members, such as a grandparent, aunt or uncle.
Abduction by a parent or family member is the main focus of this briefing. However, some of the criminal law described in the briefing also applies in the context of abduction by someone not known to the child.
Child abduction can be classified as domestic, where a child is taken or retained elsewhere in Scotland or in another part of the UK, or international, where a child crosses international borders.
Child abduction under Scots law is covered by both the criminal and civil law.
Criminal law
The Child Abduction Act 1984 ('the 1984 Act'), a piece of UK Parliament legislation, is the key statute. Section 6 of the 1984 Act, the relevant provision for Scots law, says that it is an offence to remove or send a child from the UK in certain circumstances.
Section 6 of the 1984 Act requires certain court orders to be in place in respect of the child before an offence can be committed. Section 6 is narrower in scope than the equivalent provisions for England and Wales in requiring a court order to be in place.
In the common law, that is the law developed by the decisions of judges in individual cases, plagium and abduction are possible criminal offences applying to child abduction. This includes in relation to domestic child abduction.
Where a criminal offence is alleged to have been committed, or is at risk of being committed - for example, because a child covered by a relevant court order for the purposes of the 1984 Act is thought to be travelling out of the country - the police should be informed. The police can assist with the recovery of the child.
Where there is an imminent risk of international abduction, and certain other criteria are satisfied, the police can activate the 'port alerts' system. This notifies all UK points of departure, such as ports and airports, that the child is not supposed to be removed from the country.
Parental responsibilities and rights (PRRs)
Civil law is a separate branch of law which aims, among other things, to manage relationships and conflicts between people in society, including disputes over children.
Under the civil law, the law of 'parental responsibilities and rights' (PRRs), contained in the Children (Scotland) Act 1995 ('the 1995 Act') is important. It sets out the responsibilities and rights of parents in respect of their children. The 1995 Act also provides a mechanism for the courts to resolve certain disputes about children.
The 1980 Hague Convention on the Civil Aspects of Child Abduction
The 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Convention') is a significant international treaty. It provides a civil law remedy of return of a child when they have been abducted to another country bound by the Convention. The Convention binds the UK, as well as many other countries around the world.
Each country signed up to the Convention is required to have a central authority. Central authorities aim to cooperate with each other and spare individuals the cost and difficulty of dealing with foreign courts. In the UK, Scotland has its own central authority, the Central Authority for Scotland, which is part of the Scottish Government.
When a child is taken to a country that is not part of the Hague Convention, it becomes legally more difficult for the left-behind parent, who may need to pursue legal action directly in that country to try to get the child back.
Members of the public whose child has been abducted out of Scotland overseas should contact the Central Authority for Scotland for information on what action to take.
The Foreign, Commonwealth & Development Office (the FCDO) in the UK Government also can provide certain types of diplomatic support to affected citizens.
The cover photograph is 'Scared Child' by greencushion and is licensed under CC BY 2.0.
This briefing looks at child abduction as it affects children ordinarily living in Scotland.
Child abduction refers to the unlawful removal or retention of a child from their parent or from some other person or body legally responsible for them. Child abduction can happen in various contexts, such as:
stranger abduction: when a child is taken by someone they do not know
parental abduction: when a child is taken by a parent or family member, often in the context of a dispute about where a child should live, or how much they should otherwise see another parent or family member
domestic abduction: when a child is taken somewhere else in Scotland, or elsewhere in the UK
international abduction: when a child is taken across international borders.
The briefing mainly focuses on parental abduction, in both the domestic and international context.
First, the briefing covers the following general topics:
sources of advice, information and support other than the briefing itself
an overview of the law on parental responsibilities and rights in Scotland, an important part of the civil law in the context of child abduction
a more detailed look at some of the criminal law on child abduction.
The briefing then goes on to consider child abduction in particular geographical contexts. For children usually living in Scotland, the briefing covers:
In respect of child abduction affecting Scotland and another country, the briefing covers a key criminal offence under section 6 of the Child Abduction Act 1984.i
The briefing also describes the effect of an important international convention, the 1980 Hague Convention on Civil Aspects of International Child Abduction.
The briefing concludes by describing some practical and legal steps that can be taken with the aim of preventing international child abduction.
This section of the briefing signposts sources of advice, information and support other than the briefing itself.
This SPICe briefing on child abduction applies to children who ordinarily live in Scotland. However, SPICe's research colleagues in the House of Commons Library have published a briefing on the law on international child abduction as it affects children living in England and Wales.1
Note that the House of Commons Library briefing sets out the law at the date of publication of the briefing, that is 5 May 2021.
The charity, Reunite International, provides advice, support, mediation, and research and policy information on topics relating to international child abduction.
Individuals who fear that their child is at risk of international abduction may wish to consult the prevention guide for Scotland published in 2020 by Reunite International1 or contact the organisation directly for advice.
Individuals whose children have already been abducted can also benefit from advice and support from the organisation.
SPICe cannot give legal advice in individual cases and it is recommended that a solicitor is consulted for this purpose.
On obtaining legal advice from a solicitor trained in Scots law and practising in Scotland, see the SPICe Briefing, Legal Advice - where to go and how to pay. As explained in the briefing, the Law Society of Scotland - not to be confused with the Law Society for England and Wales - has an online find a solicitor facility, which it may be helpful to consult in this regard.
Note that, in certain circumstances, for example, where a child is abducted to a country which is not bound by the 1980 Hague Convention, it will often be necessary to take advice from a lawyer qualified to practice in the legal system of another country, or another part of the UK.
On obtaining legal advice in England and Wales, the House of Commons Library has published an equivalent briefing to the SPICe publication referred to above.1
Finding a specialist lawyer, including overseas
In the UK, some solicitors or solicitors' firms specialise in particular areas of law, such as criminal law, family law and child law, and this can be significant in the context of child abduction cases.
Furthermore, some family law or child law solicitors specialise in international family cases, including child abduction. For those practising in Scotland, the Law Society of Scotland has an online search facility that may help a person seeking legal advice to identify suitable specialists in the area.
The charity, Reunite International, also has a search facility enabling someone to search for lawyers specialising in international child abduction, both those based overseas and in Scotland. The GOV.UK website also has a specific section on finding a lawyer abroad.
Separately, for some very basic legal information on EU child abduction cases, Scottish solicitors who are not specialists in the area may wish to consult the child abduction section of the Scottish Government's publication, Cross-EU border family law from 1 January 2021: guidance for legal professionals.
As mentioned earlier, child abduction is covered by both civil and criminal law.
This section provides an introductory overview to that legal framework and the associated mechanisms for the enforcement of the law.
The content of the criminal and civil law is explored in more detail later in the briefing.
With child abduction, a criminal offence may be committed in certain circumstances.
The criminal justice system has certain enforcement mechanisms should this occur, or be at risk of occurring.
Both these topics are covered in turn in this section.
Under the common law, that is the branch of law developed by the decisions of judges in previously decided cases, there are two relevant criminal offences. These are plagium - very broadly, the theft of a child - and abduction.
As noted earlier, for international abduction, there is also an important offence found in statute, under section 6 of the Child Abduction Act 1984.
In Scotland - contrasting with the position in England and Wales - the criminal offence under the Child Abduction Act 1984 requires certain court orders to be in place in respect of the child before it can be committed.
A key part of the criminal justice system is that a suspected criminal offence can be investigated by the police and, against the backdrop of a possible offence, the police will usually assist with the return of a child.
The public body, the Crown Office and Procurator Fiscal Service (COPFS), can also bring a prosecution in the criminal courts in relation to an alleged criminal offence using one of their specialist prosecuting solicitors (a procurator fiscal). COPFS receives reports about crimes from the police and other reporting agencies and then decides what action to take, including whether to prosecute someone. Crucially, affected parents do not pay for COPFS initiating any prosecution proceedings in the criminal courts.
In terms of other steps that the police can take relating to child abduction, an important practical remedy which can be obtained via the police is found in the 'port alerts' system.
The police can be asked by a concerned parent (or sometimes their legal representative) to issue a port alert, sometimes also called an all ports warning or port stop. This is if:
a child is likely to be taken abroad within 48 hours
there is a relevant civil court order in place relating to the child meaning that a criminal offence under section 6 of the Child Abduction Act 1984 might be committed
there is evidence that the threat is real and imminent.1
Under this system, the police will contact the National Border Targeting Centre, part of the UK Border Force. It, in turn, will alert all UK points of departure from the country that the child is not to be removed from the country, with the aim of preventing the abduction.
Keeping a child in another country after an agreed period of time, such as a holiday or visit, is a type of parental child abduction known as wrongful retention. Wrongful retention overseas is not currently a criminal offence in the UK.1 However, separately, it is covered by the civil law.
The Crime and Policing Bill - reform of the law of child abduction for England and Wales
The Crime and Policing Bill is currently being considered by the UK Parliament.
Clause 97 of the Bill as amended (clause 76 of the Bill as introduced) would expand the criminal offences applying to England and Wales in the Child Abduction Act 1984,i by inserting section 1A into the 1984 Act. This would make it an offence for a person connected with a child to detain a child outside the UK without the appropriate consent.
In other words, wrongful retention would be included within the scope of the criminal offence for the first time.
Clause 97 would not alter the scope of the separate criminal offence applying under the law of Scotland.ii
Civil law is the separate branch of law which aims, among other things, to manage relationships and conflicts between people in society, including disputes about children.
While one of the aims of civil law is to protect people, it does not criminalise behaviour to achieve that. It leaves this to the criminal law.
Another key difference between the criminal and civil justice systems is that it can be necessary for an affected person to begin court action in the civil courts relating to a child. There is no equivalent for civil cases of the public prosecutor (COPFS).
As well as being potentially stressful, there are associated legal costs, often considerable, of bringing (or defending) civil court proceedings, unless these costs are entirely covered by the legal aid system.
Family law, specifically the law on parental responsibilities and rights (PRRs), is an important part of the civil law in this context.
This area of law provides for the circumstances in which parents, and sometimes other family members, have legal authority in respect of a child.
The law on PRRs enables parents to obtain court orders which are relevant in the context of the criminal offence under the Child Abduction Act 1984. More generally, it enables parents to settle various types of dispute relating to where their child lives and with whom they have contact.
The relevant family law is covered in more detail later in the briefing.
Separately, under the civil law, the 1980 Hague Convention on Civil Aspects of International Child Abduction ('the Convention') is important for international abduction.
Unlike most civil cases, which rely on court action by private individuals, the return of a child under the Convention involves central authorities, which are state-run bodies that play a key role in securing the return of the child.
The Convention is an important topic also covered in more detail later.
The briefing now moves on to consider the law in more detail.
First, to understand the law relating to child abduction in the Scottish context, it is important to have a working knowledge of the law on 'parental responsibilities and rights' (PRRs).
SPICe has written a research briefing entitled Parental Responsibilities and Rights (3 September 2024) that provides a detailed overview of the law in this area.1
A wide range of topics are covered in the above briefing, including a description of the law as it applies to same-sex parents. The law here is very similar to the law applying to mixed-sex parents.
Separately, SPICe has written a research briefing entitled Contact between grandparents and their grandchildren (3 September 2024).2 While not covering child abduction specifically, it may be helpful legal background in the context of some abduction cases involving other family members.
Part 1 of the Children (Scotland) Act 1995 provides for a range of PRRs in respect of all children living in Scotland.i Holders of PRRs can make a range of both major and day-to-day decisions about children.
PRRs include, for example, the right to have the child live with a person having PRRs (residence).ii Furthermore, where the child does not live with that person, there is both the right and the responsibility to have contact with that child.iii
Under Scots law, PRRs, to the extent they can be enforced by a court in respect of a child or young person, come to an end when that person reaches the age of 16.i
This differs from the equivalent law for England and Wales, which relates to under 18s.ii
This briefing uses the term child for individuals under 16, but SPICe recognises that the term young person is more suitable for those at the upper end of this age range.
In practice, more than one person may have, and commonly does have, PRRs in respect of a child. For example, this is often the situation with two parents.
Mothers who have given birth to a child have PRRs in respect of their child from the moment of birth.
Fathers have PRRs in most circumstances including:
if they were ever married to, or in a civil partnership with, the child's mother, even if the marriage or civil partnership later endsi
if they jointly registered the child's birth with the child's motherii
by agreement with the child's mother - although this is not particularly common in practiceiii
by court order.iv
Adoptive parents acquire PRRs at the point the adoption is finalised by the court.v
A court can later remove some or all of the PRRs from a parent.iv As alluded to above, the court can also give a person (whether the parent or someone else) some or all of the PRRs if they did not have them originally.iv As explored in more detail in the next section, when reaching any decision about PRRs under the 1995 Act, the court must have regard to certain key principles set out in the 1995 Act.iv
Grandparents and other relatives
Note that grandparents and other members of a child's extended family have no automatic right of contact with the child in question, or indeed any other right associated with PRRs.
However, a court can award a grandparent or other relative some or all of the PRRs under the 1995 Act.iv For example, a grandparent might have a court-ordered PRR relating to contact with a grandchild.
If a grandparent or other relative is the main carer for a child, they might have an order granting them all PRRs, including a PRR enabling them to have the child live with them.
A person who has PRRs in relation to a child may arrange for some or all of them to be fulfilled or exercised on their behalf, and this can sometimes be relevant in the context of grandparents or other family members.x
A court is empowered to make a range of court orders to resolve disputes about PRRs, including, for example:
as discussed earlier, a court order giving or removing some or all of the PRRsi
a residence order, determining where a child should live, which may be with one or both parents, or sometimes with another family memberii
a contact order, setting out the arrangements for contact between a child and a parent, or between a child and another person, with whom they do not liveiii
a specific issue order - this type of order can be used to address an issue important to one or both parents which has arisen relating to PRRs.iv For example, it can be used to decide where a child should go to school, if one parent should be allowed to move to live somewhere else with a child or which parent should hold a child's passport1
an interdict, a court order stopping someone from taking the steps described in the order. The prohibited steps could include taking the child out of the UK or one part of the UK.v
Note that it is possible to obtain interim versions of the court orders, that is, temporary ones, pending final resolution of the case.viIn an emergency, a solicitor can advise on how to obtain an interim order as quickly as possible.1
When reaching any decision about PRRs under the 1995 Act, the court must have regard to certain key principles set out in the 1995 Act. The welfare of the child is the paramount consideration, that is, the most important and overriding one.vii
Taking account of the child's age and maturity, the child must be given an opportunity to express their views. The court must consider, although not necessarily follow, any views expressed by the child.viii
The court must also 'have regard in particular to' factors including the need to protect the child from actual or possible abuse.ix This extends to the abuse of a person other than a child. It covers domestic abuse, for example, abuse of one parent by the other parent or by a step-parent.x
A fuller discussion of how courts reach decisions under the 1995 Act can be found in the SPICe briefing, Parental Responsibilities and Rights.3
Sometimes, after a court order under the 1995 Act is obtained, the person in whose favour it is granted experiences difficulties with enforcing the terms of the order in practice.
For example, a parent or other relative might take a child or fail to return them after an authorised visit affecting a parent in whose favour the court has granted a residence order.
This section of the briefing considers the legal remedies available through the civil courts when such a court order is disobeyed (breached).
If reaching an amicable solution fails, one of the current legal remedies is that the person in breach can be found in contempt of court. Broadly, this sanction applies when a court finds that the person has acted in a way which challenges or defies the authority of the court.
When a person is found in contempt of court, they can be fined or imprisoned. Courts are reluctant to imprison an individual in this situation because of the implications for the children involved but it does happen in a small number of cases.
As a separate legal remedy, a court has a discretion to vary the terms of any existing court order relating to a child and/or make new court orders.i Theoretically, the court could alter who the child lives with as a result of a breach of a court order. However, crucially, when the court is reaching a decision as to what to do, the welfare of the child remains the paramount consideration.ii
Another important topic in the context of this briefing is how the 1995 Act relates to a proposed relocation by a parent.
Sometimes, for example, to be closer to extended family or to take advantage of a work opportunity, or to attempt to leave behind memories of a relationship breakdown or trauma, one parent (with PRRs) wants to relocate to somewhere much further away in Scotland, elsewhere in the UK, or overseas. The other parent might then object.
As noted earlier in the briefing, it is common for two parents to have (all or some) of the PRRs in respect of their children.
The general principle set out in the 1995 Act is that, unless their rights are modified by a court order or legal agreement, each parent (with PRRs) can exercise their PRRs without the consent of the other parent (with PRRs).i
However, if a relevant court order exists, such as a residence or contact order, it should be followed by the parents and by anyone else named in the order.ii As discussed earlier, there are legal remedies available if a court order is disobeyed.
The 1995 Act also says that the views of the child and anyone else with PRRs must be taken into account, so far as practicable, in relation to major decisions by parents about PRRs.iii
In addition, under the 1995 Act, no person, including a parent with PRRs, is allowed to take the child out of the UK without:
the consent of any other person who has PRRs (relating to contact or residence), or
the permission of the court.iv
In some circumstances, if a child is taken overseas, a person risks committing a criminal offence under section 6 of the Child Abduction Act 1984 and the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, both considered in more detail later.
It is against this legal backdrop that a parent with PRRs who wishes to relocate should ask for the agreement of any other parent with PRRs. This is essential where the proposed relocation is overseas.
If consent is not given, and the dispute cannot be resolved by other means, the parent aiming to relocate can ask the court to grant permission under the 1995 Act via a specific issue order.v
As part of resolving a relocation dispute, a parent seeking relocation may need to ask the court to make changes to existing court orders, such as existing residence or contact orders.v
As explained in an earlier section of the briefing, the court will decide whether to grant any court order under the 1995 Act with reference to certain key principles, with the welfare of the child being the paramount consideration.vii
As explained earlier, in the common law, there are two potentially relevant criminal offences, plagium and abduction. These are discussed in more detail in this section of the briefing.
Another key part of the criminal law - the statutory offence contained in the Child Abduction Act 1984 - is covered later in the briefing in the context of international child abduction.i
The current section also covers proposals for the reform of the criminal law relating to child abduction by the Scottish Law Commission, the independent law reform body that makes recommendations for law reform to the UK and Scottish Governments. These proposals were not implemented.1
In contemporary criminal law, plagium is the deliberate taking of a child from a parent or other person who has for the time being a legal right to have the child living with them by the operation of the law or by virtue of a court order.12
It is not relevant whether the child has given their consent to what has taken place.3456 It is not necessary for a prosecutor to prove that there was an intention on the part of the accused to deprive a person permanently of their parental rights.7
Plagium can be committed by a parent.89 However, recent case law suggests that typically it will not be committed by a parent with some remaining PRRs.101112This specific aspect of the law is explored in more detail later in the briefing.
In criminal law, a defence is an explanation for a crime that legally excuses the person accused of committing it. It may be a defence to plagium that it was done to protect the child from harm, on the basis of the general criminal law defence of necessity.
However, the criminal court has said that it is “only in dire circumstances" that a person could possibly be justified in taking the child away from their parent or other legal guardian without recourse to the normal processes of law.514 This reflects the general requirements for a defence of necessity that the danger must have been immediate and the accused must have had no alternative to committing the offence.15
The child as a form of property
A key policy issue that some commentators and judges have discussed is that the concept of a child as property, central to the offence of plagium, sits uneasily with contemporary legal ideas.1617419
Notably, in 21st Century family law, children are viewed as people with rights and, as described earlier, family law statutes often direct the court that a child's welfare is the paramount consideration.i
See later in the briefing on the (unimplemented) proposal to abolish plagium by the Scottish Law Commission.17
The other potentially relevant offence under the common law is abduction.
In this context, it is a crime to carry off or confine any person, first, against their will and, second, without lawful authority to do so.1234
A 19th Century case suggested some doubt on whether this offence could apply to children.5 However, in several recent cases, the courts have confirmed (expressly or implicitly) that the offence can apply in this situation.678
However, the Scottish Law Commission explored some possible issues with the crime of abduction as it applies to child victims in practice.
For instance, on the requirement that someone is taken against their will, the Commission commented:
... it is an essential feature of the crime that the will of the victim is overcome. While this rarely gives rise to difficulties where the alleged victim is an adult, it can present a major problem if the person abducted is a child, where it is alleged by the accused that the child consented and went willingly. It is all too easy to imagine the situation where a child in a school playground, having been offered a bar of chocolate by a stranger, thereafter went off with him. In that event, can the child be said to have been taken forcibly against his will?
Scottish Law Commission. (1987). Report on Child Abduction, Scot Law Com No 102, para 2.4. Retrieved from https://www.scotlawcom.gov.uk/files/8712/7989/6603/rep102.pdf
In practice, the courts have attempted to tackle this issue in several ways.214
For example, in an abduction case from 1980,2 the court said that evidence of leading or inducing the child away would in itself be sufficient to establish that the child was taken away against their will.2
However, the Scottish Law Commission later doubted whether this would indeed be sufficient, since such evidence might equally be consistent with voluntary compliance on the part of the child.1
In a 2004 abduction case, the criminal court initially directed the jury that, in some circumstances, the absence of parental authority on the part of the alleged abductor could alone establish the crime. On appeal, the High Court of Justiciary later ruled this as a misdirection.4
However, a leading criminal law textbook notes that, in the specific case in question, the prosecutors had framed the charges as being based on the children being confined against their will. The textbook argues that it remains undecided if the charges could have instead been validly framed solely on the absence of parental authority.9
The issue has also arisen as to whether the common law offence of abduction can apply where a parent is the alleged abductor. Again, broadly it can, however, as discussed in more detail later, recent case law suggests probably not where the parent has some remaining PRRs.1
As with plagium, the defence of necessity can apply to the common law offence of abduction. However, there is case law suggesting it could only arise where the parent acted in the face of an immediate danger of death or serious injury to the child,1 again, a high threshold to clear in practice.
As noted earlier, the Scottish Law Commission is the independent law reform body with responsibility for making recommendations for law reform to Scottish (or UK) Ministers.
Following consultation,1 the Commission published a report on child abduction in 1987.2
This report contained two key recommendations for reform:
the abolition of the offence of plagium
that a new statutory offence be created - this would relate to the taking or detaining a child under sixteen from the control of any person having lawful control of that child.
Unlike section 6 of the Child Abduction Act 1984, the scope of this proposed new offence would not have been limited to circumstances where the child was taken outside the UK.
Separately, the Commission also proposed to broaden the scope of the existing offence in section 6. The proposal was that the offence would apply to anybody, not just a parent or guardian, taking a child out of the UK without consent. However, the Commission proposed to keep the requirement for a court order to be in place before the section 6 offence could be committed.
As explained earlier, the recommendations of the Scottish Law Commission were not implemented.
This section looks in more detail at the specific situation where a child has been taken from one place in Scotland to another place in Scotland.
This section considers two different legal scenarios:
If one parent does not have any PRRs, then the other parent, if the only other person with PRRs, has the sole right to make the decisions under the 1995 Act that decides where the child will live.
If the parent (or other family member) without PRRs then removes the child, or fails to return them after an authorised visit, then, because of the potential for (common law) criminal offences to have been committed,12 the police should be informed. The police can assist in the recovery of a child.3
Additionally, if there is a court order relating to the child in force, such as a residence order in favour of the parent with PRRs, then the parent or other family member who abducted the child may be found to be in contempt of court, with the possibility of fine and/or imprisonment.1
The possibility of being found in contempt of court also applies to any other person who knew about the court order and acted in defiance of it.1
In addition, a court may order the parent or family member without PRRs to return a child.i Failure to obey this subsequent court order would again be contempt of court.1
The criminal courts have given some consideration to the potential relevance of the common law offences of plagium and abduction in the situation where the parents concerned each have some PRRs under the 1995 Act.
Two key cases are set out in the box below.1 Note that this is not intended as an exhaustive treatment of all the potentially relevant case law which might apply to an individual case. A solicitor should be consulted in this regard.
Orr v K (2003)2
In this case, the mother was allowed contact with her child by agreement, while the child lived with the father under a residence order. When the mother failed to return the child, she was charged with plagium.
Solicitors for the mother argued that, while it had been necessary to contact the police to secure the return of the child, it did not follow that criminal proceedings could flow from these circumstances. The criminal court agreed - it ruled that the criminal charge was not competent because the mother retained some PRRs under the 1995 Act. Instead, the court said that the matter should be handled by civil courts, under the legal framework associated with the 1995 Act. Under this framework, the mother might be found in contempt of court for disobeying the residence order.
SB v HM Advocate (2015)3
This more recent case related to the common law offence of abduction. The mother and child were now living in Scotland but an English civil court had previously made a court order stipulating that the child was to live with his mother. The court said that the father was to have indirect contact with the child.
In deciding an appeal against his conviction for abduction on certain grounds, the (Scottish) criminal court observed that, in general, it was desirable that the conduct of parents in 'snatching' their own children in defiance of a civil court order should be dealt with as a contempt of court, rather than in a criminal prosecution. A criminal prosecution should only be used in exceptional cases where the conduct was so bad that it would be regarded by 'the ordinary right-thinking person' as criminal behaviour.3
The criminal courts do not appear to have had to consider the situation where each parent has full PRRs, for example, when residence is shared jointly between two parents. However, with reference to domestic child abduction and the 1995 Act,i a leading family law academic has commented:
Where both parents have full parental responsibilities and rights, it is certainly doubtful that either of them can commit plagium, since parental rights can be exercised by each of them alone.
Sutherland, E. (2004). Stair Memorial Encyclopaedia, CHILD AND FAMILY LAW (Reissue), para 187.
This section of the briefing considers the specific situation where a parent takes a child to a part of the UK other than Scotland, or fails to return them to Scotland after an authorised visit to another part of the UK.
To recap, the statutory offence under the Child Abduction Act 1984i can only be committed when a child is taken outside the UK.
However, the (common law) criminal offences of plagium and abduction can potentially be committed under the Scottish legal system in cases without any international element.
As a general principle of Scots criminal law, Scottish criminal courts have jurisdiction, that is legal authority to hear and determine a criminal case, when the actus reus, that is the action or conduct which is the key element of the crime, occurs in Scotland.
Legal advice would have to be obtained on how this general principle applies to individual circumstances.
The Family Law Act 1986 ('the 1986 Act'), a piece of UK legislation, addresses several important topics in child abduction cases involving Scotland and other parts of the UK.
Under the Family Law Act 1986, a court order regulating a child's residence is recognised across the UK as if it were made by the court where recognition is sought.i
Although recognised, a Scottish court order must be registered before it can be enforced in another part of the UK. This involves:
applying for registration through the Scottish court that issued the order
the Scottish court sending documents to the "appropriate court" in the other part of the UK
the receiving court completing the registration.i
For example, if a child is taken from Scotland to England, a Scottish residence order can be enforced in England only after an application for registration to the court that made the order, usually the local sheriff court.
This briefing is principally concerned with child abduction from Scotland to elsewhere - as opposed to from somewhere else to Scotland.
However, sometimes a child legally relocated to Scotland (under a court order made in another part of the UK) may later be abducted back to their original part of the UK by the other parent.
In this context, it is worth nothing:
If a child moves to Scotland under a court order from another part of the UK and is later abducted back to the original location, enforcement in Scotland is limited.
Only the Court of Session in Edinburgh, not the local sheriff court, can currently register and enforce such orders in Scotland.
Section 29 of the Children (Scotland) Act 2020 ('the 2020 Act') aims to change this by allowing the local sheriff courts to enforce these orders.i However, this section is not yet in force. The Scottish Government plans to introduce relevant secondary legislation on this topic in late 2025, with a proposed 12-month lead-in period before section 29 then takes effect.1
Even once section 29 is in force, so the position for enforcement changes, the Court of Session will remain the only "appropriate court" for registration - see the previous section of the briefing for the role of the appropriate court in the registration process.
If a child is unlawfully taken from or not returned to Scotland, a parent may need to start a civil court case.
This might be, for example:
to ask the court to find the other parent in contempt of court for disobeying an existing residence order
to ask the court to make a specific court order requiring the return of the child to Scotland from their current location
if the parenting arrangements had not been considered by a court prior to the abduction, to ask the court to grant a residence order in favour of the only parent with PRRs, to help safeguard against future abduction.i
The 1986 Act has specific provision for the situation where a child is unlawfully removed or retained and it is desirable to raise court action.
Under the 1986 Act, where a child is unlawfully removed from or retained outside Scotland, the child is deemed to remain habitually resident in Scotland for a period of one year from the date of such removal or retention.ii
Accordingly, Scottish courts retain jurisdiction - that is, legal authority to hear and determine any court case - over matters concerning the child during that period. This applies irrespective of the child's current location within the UK.
Earlier in the briefing, it was explained that if one parent is aiming to lawfully relocate to another country with a child the consent of a parent or the permission of the court is required.i
This section of the briefing considers what happens if those required steps are not taken and the child is taken or retained overseas, or, at an earlier stage, there is a threat of an imminent unlawful abduction by that parent.
A range of important topics are covered in this section of the briefing, as follows:
the relevant criminal offence under section 6 of the Child Abduction Act 1984ii
possible Scottish Government reforms to the scope of this offence, as yet not progressed
the 1980 Hague Convention on Civil Aspects of International Child Abduction
the situation where a child is abducted to a 'non-Hague' country
how to prevent international child abduction where there is a risk of this occurring.
The Child Abduction Act 1984 ('the 1984 Act') has criminal offences forming part of the law of England and Wales,i and, under section 6, a separate criminal offence forming part of the law of Scotland.ii
It is important to note that the focus of this briefing is on the criminal offence which is part of the law of Scotland.
A child for the purposes of section 6 of the 1984 Act is under 16.iii
The criminal offence is committed in certain circumstances - explored later - if a person connected with a child takes or sends a child outside the UK.i
A person connected with a child is someone falling into one (or more) of the following categories:
a parent or guardian of the childii
a person named (either solely or jointly with someone else) in a court order by a UK court as the person with whom the child should liveiii
there are reasonable grounds for believing that the person in question is the father of the child (where the parents are not, and never have been, married to each other).iv
Under the law applying in Scotland, the criminal offence can only be committed if one of three scenarios applies:
the child is subject to a UK court order about their residence, and the person involved did not obtain appropriate consenti
the child is a ward of court in England, Wales, or Northern Ireland (see the box below on this), and no appropriate consent was obtainedii
a UK court order explicitly prohibits removing the child from the UK (or part of it), and that order is disobeyed.iii
In the context of scenario 1 above, appropriate consent is either permission from the court that granted the order or consent from:
a parent or guardian of the child
a person named (either solely or jointly with someone else) in a court order by a UK court as the person with whom the child should live.iv
Wards of court
When a child is made a ward of court (scenario 2), responsibility for them is transferred to the court, although day-to-day care and control may still rest with an individual (or a local authority). No important step can be taken in the ward's life without the court's permission or consent.
Scenario 2 above is most likely to be relevant in a Scottish context if the relevant court order was made in another part of the UK and then the child moved to Scotland under the care of an individual. In keeping with the wider legal approach to wards of court, the appropriate consent for scenario 2 is the permission of the court that made the child a ward of court.v
For what is referred to as scenario 1 in the preceding section of this briefing, a defence (that is an explanation that legally excuses them) may be arguable in court by the person connected with the child.
This defence can apply if the alleged offender acted believing that each person required to consent had consented or would have consented if they were aware of all the relevant circumstances.
It can also apply if they took all reasonable steps to communicate with the individual(s) from whom consent is required but was unable to communicate with them.i
For all scenarios covered by section 6 of the 1984 Act, that is the scenarios covered in points 1-3 in the preceding section of this briefing, there is also another defence available in respect of an alleged offence. This is if the person can show that, at the time of the alleged offence, they had no reason to believe there was in existence a relevant court order.ii
A conviction under the 1984 Act in summary criminal court proceedings (the procedure used for less serious criminal cases) means the person could be imprisoned for up to three months, have to pay a fine, or both.i
A conviction on indictment (that is, using the procedure for the most serious criminal cases in Scotland) can lead to imprisonment for up to two years, a fine, or both.i
When the Scottish Government consulted on the proposals that became the Children (Scotland) Act 2020 ('the 2020 Act'), it considered reforms to the law on child abduction.1
One key proposal in this area was to expand the scope of the criminal offence applying in Scotland under the 1984 Act. This would have meant that it would be a criminal offence in Scotland, as in England and Wales, for a person connected with a child to remove that child from the UK without the appropriate consent. A court order would not be required for this offence to be committed.2
Ultimately, no relevant proposals were contained in the Bill which became the 2020 Act.
In the Family Justice Modernisation Strategy which accompanied the Bill, the Scottish Government commented:
After further consideration of stakeholder concerns raised during the consultation, the Scottish Government believe that significant further work is required in this area. In particular, consideration is needed in relation to the procedure for obtaining formal consent, proving consent and corroboration of evidence. This work will be taken forward and further consideration will be undertaken as to whether amendments are required to the 1984 Act.
Scottish Government. (2019). Family Justice Modernisation Strategy, para 9.15. Retrieved from https://www.gov.scot/binaries/content/documents/govscot/publications/strategy-plan/2019/09/family-justice-modernisation-strategy/documents/family-justice-modernisation-strategy/family-justice-modernisation-strategy/govscot%3Adocument/family-justice-modernisation-strategy.pdf
This section of the briefing considers the 1980 Hague Convention on Civil Aspects of International Child Abduction ('the Convention') in more detail.
The Convention is an international treaty which provides a civil law remedy of return of a child when that child has been abducted to another country. All references to 'articles' in this section of the briefing are to the individual provisions of the Convention.
The Convention binds the UK, as well as the EU countries, and many other countries around the world.
The Child Abduction and Custody Act 1985 implemented the Convention in UK law. This Act applies in Scotland.
The Convention assumes that the courts of the country where the child normally lives are the courts which should determine the parenting dispute. Accordingly, with some limited exceptions, discussed later, the civil remedy of return operates the same way regardless of the motivation for the abduction.1
As discussed earlier, in domestic family law, when decisions are made about children, the welfare of the child is typically the paramount consideration. However, the Convention is instead designed as a rapid response process, with the general idea that the child's welfare should later be considered in the domestic courts of the country to which the child has been returned.1
Country information given in this section of the briefing reflects the legal position as it was at the time of publication of the briefing.
The Central Authority for Scotland (discussed more fully in the next section of this briefing) can advise on whether the Convention is in force between the UK and the country where the child has been taken, if this is in any doubt.
The UK Government website says the Foreign, Commonwealth & Development Office (FCDO) can also provide clarification on this if required.
Over 100 countries are party to the Convention. As well as the UK and the EU countries, note, for example, that the Convention is in force between the United Kingdom and the USA, Canada, Australia, New Zealand, Switzerland, Japan, Argentina, Brazil, Mexico, Ukraine, Russia, Israel and South Africa.
However, many countries around the world are not signed up to the Convention, so it is always important to check by consulting the official status table. Note that some other internet and AI-generated sources may not be up to date.
For example, countries that have not signed up to the Convention include Afghanistan, China (except Hong Kong and Macao, also spelled 'Macau'), Bangladesh, India, United Arab Emirates, Egypt, Nigeria, Malaysia, Saudi Arabia, Iran, Nepal and Ethiopia.
The official status table for the Convention is technical and requires an understanding of various legal terms related to international treaties to interpret it correctly. The main terms are as follows:
signing (S) shows a country’s intention to be bound by a treaty but, of itself, it is not legally binding
ratification (R) is the formal process by which a country agrees to be legally bound by a treaty
accession (A or A*) is how a country joins a treaty already in force; for the Convention, an existing member must usually accept the new country
succession (Su) is when a newly independent country takes on treaty obligations of its predecessor.
To find key details about a country’s treaty status, a parent or adviser may need to click on additional information links. For example, if a country is listed under 'A*' (accession) it is necessary to check if the UK has accepted the accession of the country in question.
Pakistan is an example of a country where the UK has not accepted that country's accession and so the Convention does not apply between Pakistan and the UK. See later in the briefing for more information on Pakistan.
In addition, as noted earlier, the Convention applies only to Hong Kong and Macao (or Macau), not mainland China. However, the table lists it under a general entry for China, which can be misleading - another example highlighting the importance of checking the additional country-specific information.
For background, the specific position with Hong Kong and Macao is due to the continuation of their legal status under the Convention after their return to China.
Northern Cyprus
There is also the potential for confusion in relation to Cyprus.
The Republic of Cyprus, as an EU country, is bound by the Convention. However, the self-declared 'Turkish Republic of Northern Cyprus' (TRNC), which is not recognised as an independent state by most countries, including the UK, is not a signatory to the Convention. This creates significant legal difficulties when a child is abducted to this part of Cyprus. See the UK Government guidance on this topic.
Under the Hague Convention, a central authority is a designated agency in each member country that is the primary point of contact for requests for return and cooperation related to international child abduction.
The network of central authorities is a key part of the system associated with the Hague Convention and each country signed up to the Convention is required to have one (Article 6). The system is designed to avoid the potential expense and stress of private individuals having to navigate the court system in a country other than their own.
In the UK, Scotland has its own central authority, the Central Authority for Scotland ('the Scottish central authority' or 'SCA') which is part of the Scottish Government. It helps individuals whose children have been abducted from Scotland or who believe their child is at risk of abduction.
An application for the return of a child who has been taken to another country bound by the Convention from Scotland should normally be made to the SCA (Article 8).
The SCA, once notified, has a responsibility to take all appropriate measures to (Articles 7 and 10):
try to discover where the child is
exchange information with other central authorities about the child
try and arrange for the voluntary return of the child, taking "all appropriate measures" to do so
initiate administrative or court proceedings relating to the return of the child.
For assistance under the Hague Convention, individuals should contact the SCA using the following contact details:
Email: [email protected]
Address: Scottish Government, Room GW-15, St. Andrew's House, Regent Road, EDINBURGH, EH1 3DG, Scotland, UK.
Telephone: +44 (131) 0131 244 0460.
The Convention applies where certain criteria are satisfied.
First, for the Convention to apply, there must be a child - and a child for the purposes of the Hague Convention is defined as an under 16 (Article 4).
For various parts of the Convention, it is necessary to establish in which country or part of the UK a child's habitual residence is.
Broadly, habitual residence refers to the place where the child has an established a regular and consistent presence. It focuses on the child's degree of integration into a social and family environment. Where a child is only in Scotland temporarily, they are less likely to be habitually resident.1
If the child is not habitually resident in Scotland prior to the abduction, they will not be returned to Scotland under the Convention.1
The timing of any application to a court or administrative authority of the country where a child has been taken or retained is important.
If the application is made less than one year from the removal or retention then, subject to limited exceptions explored later, the court or administrative authority will order the return of the child, in accordance with Article 12 of the Convention.
The court may also order the return of a child if one year or more has passed if the child has not settled - this topic is explored in more detail later (Article 12(2)).
For the Convention to apply, there must be a removal or retention of the child from the child's habitual residence.
Furthermore, the removal or retention must be wrongful under the Convention (Articles 1, 3 and 4). These concepts are now explored in more detail.
Removal and retention are alternative concepts; a child is either removed or retained. In more detail:
a removal occurs where a child is moved across an international border
a retention occurs where the child was initially lawfully removed for an agreed time, for example, a holiday or period of contact with one parent, and is then kept in the other country without permission. In other words, the initial move was lawful but becomes unlawful.1
A removal or retention is wrongful if it is in breach of rights of custody. Furthermore, at the time of the removal or retention, these rights were actually being exercised, or would have been so exercised but for the removal or retention. The rights of custody can be held by a person, such as a parent, or by an institution (Article 3), such as a local authority.
According to the Convention, rights of custody can arise by the operation of law, such as because of what legislation says; by a decision of a court; by an administrative decision; or by a legal agreement (Article 3), for example, between two parents on separation or divorce.
Rights of custody include rights relating to the care of the child, in particular, the right to determine the child's place of residence (Article 5).1 A solicitor can advise on this in more detail.
As explained earlier in the briefing, the main thrust of the Convention is very much on a speedy process to achieve the return of a child to the country from which they have been wrongfully removed or retained. For most purposes, the motivation for the abduction is irrelevant.1
However, there are a limited number of exceptions to the general position, designed to account for the individual circumstances of the child and preventing the return of the child where that is not appropriate.1 These exceptions can be very difficult to establish - a solicitor can advise according to the circumstances of an individual case.
The exceptions are now considered in more detail.
The first exception is found in what is often called Article 12(2), although note that actually Article 12 has no individual numbering in the Convention itself.
The possibility of the first exception applying at all depends on the timing of the application.
As discussed earlier, if less than a year has passed since the wrongful removal or retention and the application for return of the child, Article 12 requires the court to order the return of the child. Crucially, the Article 12(2) exception then cannot apply, although the other exceptions still might (see later in the briefing on those).
On the other hand, if one year or more has passed since that removal or retention and the application for return, the return of the child can be ordered by the court. However, under the exception in Article 12(2), if the child is settled in their new environment, the court can refuse the return of the child.
For the child to be deemed to have settled in their new environment, the court is effectively considering whether the child is now more closely connected to the country to which they were abducted. The court will consider whether the child is playing an active part in their new society, and has integrated into new social networks, or whether they have retained their cultural and family links in the country from which they were removed.1
Article 13(a) of the Hague Convention sets out another possible exception. It says that, where the person applying for the return of the child actually consented to, or acquiesced in - that is, accepted - the removal or retention of the child, return may be refused.
Article 13(b) of the Hague Convention contains a further exception. It says that if there is a grave risk that a child will be exposed to physical or psychological harm or otherwise placed in an intolerable situation on return, then return may be refused.
In practice, this exception has caused most difficulty because assessing the risk posed to a child in a court hearing in another country can be challenging for the courts without full evidence.1Hague Mothers is an example of an interest group currently campaigning in relation to this aspect of the Convention.
Finally, under Article 13(2), if a child of appropriate age and maturity objects to returning, the court may refuse the return of the child.
Article 13(2) does not specify the nature and quality of the objections to the return that will be required before the court may refuse the return of the child. The Convention does not require that a child be heard during return proceedings, or specify an age at which children should be heard by the court.1
As discussed in earlier sections of this briefing, the Convention primarily focuses on the prompt return of children wrongfully removed or retained in a foreign country.
However, Article 21 of the Convention covers rights of access, also known as contact or visitation in some legal systems. As noted earlier, contact is the term used in Scotland.
Article 21 ensures that when a child is living in a different country than a parent seeking access, that parent can apply to the central authority of the relevant country for assistance in organising or securing the effective exercise of those access rights.
If a child is abducted to a country which is either not a signatory to the Convention, or the UK has not accepted the country's accession to the Convention, the process of securing a child's return becomes much more complex.
As a general point, note that the UK Government maintains a collection of guides on particular countries that can be used as a useful starting point.
As a reminder, at the start of the briefing, the role of the specialist organisation, Reunite International, was also highlighted as a possible source of advice and support.
As noted earlier, if there is any doubt, the Central Authority for Scotland or the Foreign, Commonwealth & Development Office can advise on whether the Convention is in force between the UK and a particular country.
This section of the briefing considers the key steps and options available should the Convention not be in force between the UK and the country in question.
The abduction can be reported to the local police in Scotland. However, as discussed at various points earlier, a criminal offence will not have been committed in Scotland in all circumstances. This may affect their willingness to help in certain cases.
If a child has been taken abroad but the parent does not know their location, the police can contact Interpol (the International Criminal Police Organisation). Interpol may be able to work with police forces abroad to help find the child.
Note though that, in some countries in the world, parental child abduction is not treated as a crime, or is only treated as a crime in certain circumstances. For example, in Egypt, parental child abduction is not considered a crime unless there's a court order restricting travel or determining where a child is to live.
Some non-Convention countries might have bilateral agreements with other countries. For example, one exists between Pakistan and the UK, the UK-Pakistan Protocol on Children Matters (2003).
The protocol is a judicial understanding which aims to secure the return of an abducted child to the country where they normally live, without regard to the nationality, culture or religion of the parents.
The protocol asks judges to consider any existing court orders made by the courts in the child’s ‘home’ country. The judge may then order the child to be returned to the country where they normally live. For more information, see the UK Government's guidance on Pakistan.
The Central Authority for Scotland can be contacted for advice about whether there is a relevant bilateral agreement in force between the UK and another country.
Guidance on the GOV.UK website recommends contacting the Foreign, Commonwealth & Development Office (the FCDO) for diplomatic support.
This guidance says the FCDO can:
provide advice and help a parent contact the relevant authorities abroad if they have concerns about their child’s welfare
contact the authorities abroad to express its interest in a police, social services, or court case and ask about progress, where appropriate.
The guidance also says the FCDO cannot:
‘rescue’ a child or get involved in any illegal attempts to bring a child back to the UK
guarantee the return of the child, even if a UK court orders this
carry out welfare checks, but the FCDO can advise a parent on how to report any welfare concerns to the competent safeguarding authority in that country.
If it is not possible to reach agreement with the other parent about a possible return, it may be necessary to start legal proceedings in the courts abroad to have any existing UK court order recognised by a foreign court, or try to obtain a new court order under the laws of that country.
A lawyer from that country can advise a parent on the available options.
See earlier in the briefing for specific approaches to finding a lawyer abroad.
As noted at the start of the briefing, individuals who fear that their child is at risk of international abduction may wish to consult the prevention guide for Scotland ('the prevention guide') published in 2020 by the specialist organisation, Reunite International.1
This section of the briefing summarises some key measures that can be taken if a child is thought to be at risk of abduction, with one of the main sources used in drafting the section being that prevention guide.
If a parent thinks that their child might be at risk of abduction, but there is no imminent risk, there are certain first steps that are recommended.
It is important that a parent understands who has ‘parental responsibilities and rights’ (PRRs) in respect of their child. As noted earlier in the briefing, who has PRRs affects who can legally make decisions about a child, including where they live, who they have contact with and where they can travel to.
If a parent is unsure as to who has PRRs, legal advice is recommended, with the aim of clarifying the position.
If a child already has a passport, a parent is advised to keep it in a safe place where the other parent or any other potential abductor cannot access it.
The above advice is not suitable for the situation where there is a specific court order stipulating that the other parent - that is, the one identified as a potential abductor - can hold and use the child’s passport. Legal advice is recommended in those circumstances.
If a parent is concerned that the other parent might try to apply for a passport without their consent, that parent should write to HM Passport Office to request that no passport be issued without their knowledge. This request is not legally binding, but it can alert the Passport Office to the parent’s concerns.1
As discussed earlier in the briefing, and as alluded to above, it possible under the Children (Scotland) Act 1995 (‘the 1995 Act’) to apply to the court for a specific issue order determining who can hold and use a child’s passport.
It may be advisable in some circumstances for a parent concerned about a risk of abduction, to apply for such a court order. Legal advice is recommended in individual cases.
This section of the briefing considers some practical steps that a parent with concerns could take.
If the parents are early in a separation process when the risk of a possible abduction emerges, negotiation between the parents, including via their respective solicitors, and mediation are possible avenues to attempt to resolve issues constructively.
When negotiation and mediation are not advisable
It is important to note that, for some parents, resolution outside the court process, with direct communication between the parents concerned, is not a desirable or indeed safe option.
For example, this can apply if one parent is abusive and so poses a risk to the other parent or to the child. Anyone signposting parents to possible services should always keep this important issue in mind.
In addition, mediation should not be considered in circumstances where the concerns are so great about abduction that there is a real risk that, if alerted to what is proposed, the potential abductor will accelerate their plans to abduct a child.1
Note also the information on the confidentiality of mediation in the next section of this briefing.
Mediation involves an independent and impartial person helping parents to negotiate a potential solution to a problem in a confidential setting. The parents, not the mediator, decide the terms of any agreement. The outcome is not legally binding without further steps being taken separately.
Mediation in family cases is mainly provided by third sector organisations or by solicitors who are also qualified as mediators.
There is no compulsion to participate in mediation. Both parents must be willing to participate voluntarily for the process to work.
The cost of mediation depends on the type of mediation service used, as well as eligibility for legal aid.
There are various ways to find a family mediator in Scotland:
The network of Relationships Scotland provides family mediation services across Scotland. See Relationships Scotland's webpage on family mediation for more details.
An individual can find a local mediation service using the search facility on the Scottish Mediation website.
CALM Scotland offers mediation services from experienced lawyer-mediators that can help with ways of resolving disputes and problems associated with parents separating.
Reunite International also has its own mediation service that specialises in cases of the prevention of abduction, abduction, relocation and contact across international borders.
If there is an increased level of concern associated with a possible abduction, then there are further steps that may be advisable in a parent’s individual circumstances.
A key theme of the briefing so far is that, for a criminal offence to have been committed in Scots law under section 6 of the Child Abduction Act 1984, a relevant UK civil court order must be in place relating to the child concerned prior to the abduction. Broadly, these required orders relate to where a child lives and/or prohibit the child from being taken out of the UK.
Most of the relevant orders that can be granted by a Scottish court are found in the Children (Scotland) Act 1995. To recap in more detail on these orders, a specific issue order can resolve a dispute on topics including whether a parent should be able to relocate and who should hold and use a child’s passport. A residence order can determine where a child should live, which can be with one or both parents. An interdict can set out a range of prohibited steps, such as preventing a child from leaving the UK.
A parent may wish to take legal advice on the possibility of applying for a civil court order in the individual case, including the possibility of an urgent application, should the circumstances justify it.1
To reduce the risk of child abduction, in addition to obtaining court orders, a parent could also take certain practical steps, such as:
informing the child’s school or nursery about their concerns and sharing any relevant court orders with them. The parent could discuss with the school or nursery how it could support that parent
alerting other caregivers and activity leaders (for example, relatives, childminders, family friends, club leaders) so they can be vigilant
asking trusted individuals close to the other parent to inform the parent with concerns of any suspicious activity, like sudden travel plans, giving up work or moving house
educate their child, if appropriate given their age, on what to do if someone tries to take them abroad—such as seeking help from police or airport security.1
If a parent believes their child may be taken out of the UK within 48 hours without a required consent, and there is a relevant court order in place, that parent should contact the police immediately via 101 or visit a police station.1
The parent should request a ‘port alert’, also called an ‘all ports warning’ or a ‘port stop’, a system discussed earlier in the briefing.1
The police will typically require proof of a relevant civil court order and evidence that the threat is real and imminent. Where the port alert is authorised, the child’s details will be added to a warning list for an initial period of 28 days.1 Note that the prevention guide comments:
As there are no compulsory exit checks when leaving the UK, and the authorities do not maintain a comprehensive list of people leaving the UK, a port alert is not a watertight prevention measure and does not always work. As a result you should only rely on a police port alert in a real emergency situation when no other prevention measures are possible. It should be a last resort and not exclusively relied upon.
Reunite International. (2020). International Parental Child Abduction: Prevention Guide for Scotland. Retrieved from https://www.reunite.org/wp-content/uploads/2020/05/Scot-Prev-Guide-2020.pdf
The other key step recommended is contacting a solicitor as soon as possible to discuss the need for relevant civil court orders to be obtained urgently.1