Parental Child Abduction - Preventative Measures

• Published date: 19 August 2022
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Giambrone & Partners
• Author: Ms Daniel Theron

The past two to three years have been stressful for many people at one time or another. The challenges of the pandemic and lockdown and now an economic downturn test many people to breaking point. Difficult times can often push married or cohabiting couples too far and the pressures lead to a breakdown of the marriage or relationship. Where the couple are of different nationalities, the party living elsewhere from their country of origin often wants to return home when divorce is looming, or the relationship is at end and where they may have a support network.

If there are minor children of the relationship, difficulties can arise very quickly, if there are opposing views as to where and with whom the children should live. Where there is no agreement the court will intervene. The welfare and well-being of the children is the overriding consideration of the court and all decisions taken with regard to the children aim at supporting the best interests of the children. Ultimately, the court adopts a "no order" principle and will review the current position between the parties in relation to the children with a view to making a decision in the best interests of the children. The parents' wishes are a secondary consideration if they vary from the court's decision.

The emotional stresses and strains of the whole situation not infrequently results in one party returning to their home country with their children with no intention of returning. Parental child abduction is one of the most contentious and upsetting consequences of a relationship breakup; it leaves the left-behind parent facing a legal battle to obtain an order for the child to be returned to its country of habitual residence.

Daniel Theron, a partner, commented "the courts aim to cause as little disruption as possible to the daily lives of children caught up in the breakdown of their parents' relationship. Ideally, they should remain in the same country and if they are of school age, remain at the same school. However, often the divorce or breakdown of the relationship is so acrimonious that the parents refuse to come to an arrangement" Daniel went on to say "difficulties arise when one parent decides that they will return to their country of origin with their children without the intention of returning. If there is a real risk of parental abduction, there are legal steps that can be taken in advance to off-set the possibility of a child being removed from their country of habitual residence...