The Analysis of the Child Abduction Act - Essay Example

The Child Abduction Act Grade: (05, 05, 2009) Introduction This essay wishes to explore the issue of the Child Abduction Act. In this case, the 1984 version will be assessed, along with how the Act bears a correlation with the rights of a child. Further, the deliberations of the Hague Convention as regards the right to custody of a child who has been abducted shall also be considered. Brussels II may be said to be an improved version of the protection against child abduction, as stipulated by The Hague Convention draft (Hodson 2008). This essay shall also explore the Brussels II draft, and especially that clause that attempts to offer protection to the parent of an abducted child. The Child Abduction Act (1984) The Child Abduction Act addresses the offence that is child abduction. In this case, an abductor could be a parent, or not. The act also provides that an individual who is involved with a child below sixteen years of age is deemed to have committed an offence at such a time as when he either sends or takes a child away from the United Kingdom, and not taking the trouble of seeking proper consent. Once a person is deemed to be a parent to such a child, the law recognizes such a person as being connected to the child in question (Wardle & Nolan 2002). In a situation whereby such a child was born at a time when his parents had not yet married, but evidence exists without any reasonable doubt that such a person is the father to the child, or a guardian for that matter, this is still counted as a connection with the child. The same case applies when such a person has been awarded the child’s custody (Wardle & Nolan 2002). The Child Abduction Act states that the consent to taking away a child has to be sought from the mother to the child, his father (only in a case where such a father enjoys parental responsibilities), the child’s guardian, or another individual who has been favoured by a residence order to take care the child. The same case applies to an individual that has been granted custody of the child in question (Wardle & Nolan 2002). According to the Child Abduction Act, an individual may send or take a child away from United Kingdom and not be seen to have committed any offence under certain circumstances. For example, an individual who has had a residence order ruled in favour of, in as far as the custody of the child is concerned gets exempted, or if an individual wishes to send or take such a child from outside of the United Kingdom for no more than a month’s time (Lyster 2007). The Child Abduction Act may be said to take into account the welfare of the child. For example, article 14 of this act states: “the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child” (Lora 1997). This may happen without the request state having an alternative to definite processes as regards the verification of such a law, or even foreign decisions recognition, and that would under normal circumstances be valid. Nevertheless, the discretion of the court over ensuring the protection of the child’s welfare is not just limited to article 14. Article 18 of the Child Abduction Act states: “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time” (Lora 1997). Furthermore, the Hague Convention grants the court certain privileges to intervene in the form of awarding provisional directions as it deems appropriate, with a view to ensuring that the concerned child’s welfare is taken into consideration (Detrick & Vlaardingerbroek 1999). Once a court has arrived at its final ruling as regards the application for the custody of an abducted child, it still has the discretion to issue any order that it considers right, so long as such an order is meant to ensure that the welfare of a child is protected. Nevertheless, issues of inter-state jurisdiction have been observed. For example, case law from both Scotland and England shows that courts in these tow jurisdictions are quite reluctant to get caught up in the assessment of foreign decisions, as regards the issue of the Child Abduction Act. In situations whereby other contracting states have cited Conventional case law, this has usually occurred in a manner that has been quite haphazard, or even as a last resort. In the child abduction case that involved a minor, Re M (1), reference was made by Butler-Sloss Lj to a first time and unreported case from Australia, Turner v. Turner (2). This is because at the time, it happened to have been the only discovered case in which children were party to court proceedings (3). In a related way, the case law of the South Australia Commissioner of Police v. Temple (3) “was cited as the only available example where the exacting of undertakings was considered legitimate” (Beaumont & McEleavy 1999). The Hague convention From an international perspective, The Child Abduction Act offers a standardized law that may be adopted by signatories for purposes of requiring that a child who has been removed wrongly away from its usual residence, be returned (Beaumont & McEleavy 1999). The Hague convention has its application in those courts that are to be found within a contracting state’s jurisdiction. Based on The Hague Convention, the only claim that the courts are able to consider is that an improper removal of a child has taken place, as opposed to an underlying claim of custody, and the associated merits. 1 [1994] I FLR 390 AT 394 2 27 JUNE 1988, Family court of Australia (Brisbane). 3 [1994] 2 FLR 399 at 365 4 (1993) FLC 92-424 What The Hague Convention intended to achieve was to avert a situation whereby one of the parents would gain an advantage to the custody of a child in such a level as is unwarranted. Such a situation, the Convention notes, could very well result in such a parent opting to move to another state, if at all to invoke the jurisdiction of that other state, or country (Lora 1997). The principle function of The Hague Convention on child abduction is to avert child abductions at an international level. In addition, the convention also seeks to avail a rapid remedy, with regard to seeing to it that such an abducted child is returned. This is made possible because The Hague Convention guarantees the respecting of the rights to custody by one state that has entered into a contracting agreement with the convention, with another state that is also a signatory to the convention. Brussels II Brussels II may be said to be an improved version of the protection against child abduction, as stipulated by The Hague Convention draft. In light of this, Brussels II is characterized by an important element, in that it has an extra clause that seeks to offer protection to the parent of an abducted child (Hodson 2008). In a case whereby non return order has been issued by the residence state of the abducted child, a state that is also a member of The Hague Convention, the revised draft of Brussels II provides that such an order ought to be sent either the Central Authority, or the court within the state or country of residence of the child who has been abducted. Furthermore, such an order needs to be received in a month time from the date of its issuance. Such an order should also be accompanied by court hearings in the form of a transcript, in addition to other types of documents that have influenced the decision by the judge towards awarding custody to an abducted child (Hodson 2008). In this case, the Central Authority or the receiving court for that matter is then charged with the responsibility of informing the relevant parties, and these include the parent to the abducted child. This is more of an invitation, so that the relevant parties may have a chance to undertake court submissions. Ideally, the submission ought to take place within a time space of three months following a notification by the court (Hodson 2008). Following a submission, the court then has the discretion to assess the child custody issue. Under normal circumstances, the parent to a child is called upon to submit his/her application, so that he/she may gain custody of their child. Conclusion The Child Abduction Act tries to define who a child abductor is, along with the circumstances that may lead to a situation being termed as abduction. For example, the Act talks of the need to seek consent from the mother, or the father, in case he enjoys parental; responsibilities. The Act may be said to have the welfare of the child in mind, in that it allows the court to intervene in case of a child abduction dispute, to see to it that the best interest of a child are given priority (Beaumont & McEleavy 1999). On the other hand, The Hague Convention is concerned with averting child abduction at an international level, while Brussels II is said to be an improved version of the Hague Convention. The latter seeks to offer protection against child abduction. Bibliography Beaumont, P. R, & McEleavy, P. E, 1999, The Hague Convention on International Child Abduction. Oxford: Oxford University Press. Detrick, S, & Vlaardingerbroek, P, 1999, Globalisation of child law. Leiden: Martinus Nijhoff Publishers Hodson, D. (2008). Brussels II child abduction: trumping orders. Retrieved May 05, 2009, from http://74.125.95.132/search?q=cache:wimt0thrIokJ:www.davidhodson.com/assets/documents /trumping_orders.pdf Lora, C. (1997). The Hague Convention on the Civil Aspects of International Child Abduction as applied to non-signatory nations: getting to square one. September 22. Houston Journal of International Law. Retrieved May 05, 2009, from http://74.125.95.132/search?q=cache:RRxciXKachIJ:www.encyclopedia.com/doc/1G1- 20259187. html Lyster, M. E, 2007, Building a parenting agreement that works. Berkeley, California: Nolo Publishers. Wardle, L. D, & Nolan, L. C, 2002, Fundamental principles of family law. New York: Wm. S. Hein Publishing. Read More