Review of Children (Scotland) Act 1995 consultation: analysis

9 Child Abduction by Parents

9.1.1 The main consultation document sought views on how the law could be changed to ensure that civil and criminal child abduction by parents can be prevented going forward.

9.2 Exercising Parental Rights

9.2.1 The 1995 Act prescribes that no person shall be entitled to remove a child habitually living in Scotland from, or to retain any such child outwith, the UK without the consent of a person who for the time being has and is exercising their PRRs. Views were sought on whether the wording of the 1995 Act should be changed so that a person unable to exercise their rights because a child has been removed from the UK is not excluded from this provision.

Q30. Should the reference in section 2 of the 1995 Act to “exercising” parental rights be changed to reflect that a person may not be exercising these rights because the child is now outwith the UK?

	Number	Percentage
Yes	95	37%
No	33	13%
No response	126	50%
Total	254	100%

9.2.2 Although half (50%) of respondents did not answer this question, among those who did, the majority (37%) supported the proposed change to the Act.

Support for an Amended Reference

9.2.3 Reasons given for the amendment included that the change would bring clarity, would protect the best interests of parents and children and would make the legislation more effective.  It would also remove any option for removing parents to accuse others of failing in their parental responsibilities and rights for not having seen the child:

“…the removal of the requirement to be “exercising” parental responsibilities and rights would avoid any arguments on the part of the abducting parent that the other parent had not seen the child recently.” (Other Organisation)

9.2.4 Several individuals and organisations suggested that it would also be helpful to define the term “exercising” and one family support organisation suggested that 'exercising' should be changed to 'has been or was exercising parental rights’.  Other suggestions for changes to the wording included:

“Section 2(6) should be amended to read, e.g., “a person (whether or not a parent of the child) who for the time being has been and, but for removal or retention of the child outwith the United Kingdom, would be exercising in relation to him a right mentioned…”  (Individual)

“Although we are not aware of the current wording causing any difficulties in practice, it would be possible to change the wording to reflect that of Article 3 of the Hague Convention on the Civil Aspects of Child Abduction 1980, which talks about rights that “were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention”.”  (Legal Profession)

9.2.5 Additional clarification may also be helpful for professionals working with families, to help them fulfil their duties:

“…clarification as to the extent of “exercising” within the Act would be helpful for parties including local authorities, who can be required to address certain matters (e.g. consents) on the basis of parents who have and are exercising PRRs.” (Local Authority)

9.2.6 Indeed, two local authorities noted particular concerns in relation to the existing provision and how this negatively impacted on looked after children, specifically:

“[We are] concerned more broadly about this section of the Act, and in particular the current adverse impacts on looked after and accommodated children and their ability to go abroad on holiday with foster carers or kinship carers.  If a parent still holds PRRs for a child, their consent has to be obtained before a child can be taken abroad for a holiday.  There have been issues whereby one or both parents refuse consent, meaning that a court order would be required.  As consent can be withdrawn at the last moment, this can cause difficulties in obtaining the necessary consent order in time.”  (Local Authority)

“The provision as currently drafted presents difficulties which it is believed, were not intended by the legislature. It can result in unnecessary disruption to the lives of children ‘in care’. The effect of the proposed change may be to compound difficulties, thereby further disrupting these vulnerable children’s lives…The issue of looked after children travelling abroad and the interaction with s.2 of the 1995 Act is a complex issue, needs to be carefully examined and a clear solution found.”  (Local Authority)

9.2.7 The Scottish Government was urged by these respondents to consider the consequences of this part of the 1995 Act in more detail, as well as to consider the equivalent English provisions relating to looked after children as these were perceived to be clear and unambiguous.

9.2.8 Several individuals and organisations agreed with the changes on the basis that parents must not be excluded due to changes/movement of children that occurs beyond their control:

“You can't exercise a right if you are being denied that right.” (Family Support Organisation)

 “Change is required here, to recognise that a failure to exercise PRRs may be because of the actions of the other party in removing the child from the jurisdiction.”  (Individual)

“Yes, it would seem appropriate to clarify this situation so that a person is not disadvantaged for not exercising their rights if they are not able to do so.” (Family Support Organisation)

No Need for Changes

9.2.9 There were no substantive reasons given against the change and most who said ‘no’ to this question went on to explain that they perceived that section 2 as currently enacted works well and does not need to be reformed.  There was no evidence of a need for change, it was suggested, and a clearer definition of ‘exercising rights’ may simply be needed instead:

“The present provisions are sufficient and to change it may cause confusion, and it is important that in this area of child law the provisions are clear.”  (Legal Profession)

“Instead there should be a clear definition of ‘exercising’ rights - which takes account of a person’s intention to exercise rights were it not for barriers which can prevent this from happening.”  (Public Body)

9.2.10 Among both those who answered positively and negatively to the closed component of this question there were sentiments that no child should ever be forcibly removed/moved out of the UK as this was most often not in the best interests of the child.  One individual suggested that changing the wording would ensure that there was not uneven power given to the removing parent.  Two pointed out that parental responsibilities and rights could still be exercised remotely when children are removed to a different country, using technology (e.g. Skype, Facetime, etc.) and that this should be acknowledged.  Although not answering the question, parenting had no boundaries, it was suggested by several individuals:

“A parent doesn't stop loving or wishing to be a parent due to the fact the child isn't in the country.”  (Individual)

“A parent’s rights should remain independent of the country the child resides. Parenthood is non-geographical.”  (Individual)

9.3 Creating a Criminal Offence for Removing a Child from the UK without Appropriate Consent

9.3.1 The consultation also sought views on whether it should 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. This would mean emending section 6 of the Child Abduction Act 1984 (the 1984 Act).

Q31. Should section 6 of the Child Abduction Act 1984 be amended so that it is a criminal offence for a parent or guardian of a child to remove that child from the UK without appropriate consent?

	Number	Percentage
Yes	124	49%
No	13	5%
No response	117	46%
Total	254	100%

9.3.2 Although almost half of respondents did not answer this question, among those who did, there was a large majority (49%) who supported amending the 1984 Act.

Support for the Creation of a Criminal Offence of Removing a Child without Appropriate Consent

9.3.3 The main reasons for support were that there was a lack of alternative deterrents for removing children from the country and existing civil routes being seen as not to be taken seriously by some.  Others stressed that making it a criminal offence would also highlight the seriousness of non-consensual removal:

“It acts as a significant disincentive for someone to take a child out of the country without the consent of another parent for example, especially if there is malicious intent.”  (Individual)

“To make it clear in legislation the seriousness of child abduction and how this is understood in Scotland, regardless of whether a specific order is in place.” (Family Support Organisation)

“Civil law seems to be ineffective in areas where, in spite of a court order existing, one parent can defy the wishes of a court with apparent impunity.” (Individual)

9.3.4 The current system of court orders being available to try and prevent removal of children was seen by some to be a particularly ineffective deterrent and was also difficult to implement and police in practice, they perceived:

“One of the difficulties with this is that an abduction may come completely out of the blue, or immediately after the initial relationship breakdown between parents, and so there is sometimes no opportunity to ask the court for an interdict or other order prohibiting the removal of a child from the UK.  In such situations the police are the only authority who can act to prevent the removal of a child, and so leaving children without such protection can have long-lasting consequences.” (Family Support Organisation)

9.3.5 Others commented that it was difficult and sometimes costly to make an application under the 1980 Hague Convention for the return of the child/children and that this also offered no guarantee that a child would be returned to their country of residence.  Prevention, therefore, was seen as being necessary to remove the need for reactive measures.  Making it a crime may also allow the police to act more swiftly to intervene in any emergency cases that arose, it was suggested. 

9.3.6 As with the preceding question, several respondents simply stressed again that they felt it was wrong that any child should be removed from the UK without written consent from all those actively involved in their parenting/guardianship, and views were expressed that to do so could lead to parental alienation.  Thus, they felt, it should be a “punishable crime” which served to safeguard the parental rights of both parents:

“Both parents should know where their child is and what travel arrangements are - so that both parents know that their child / children are safe at all times.” (Individual)

9.3.7 Among those who agreed with the change, there seemed to be general consensus that it should be a criminal offence regardless of who commits it (i.e. either the mother or father or other person with PRRs).  Similarly, a respondent from the legal profession suggested that the definition of who should give consent should be broad, and that it was logical to align the criminal offence with the civil law at section 2 of the 1995 Act in this respect.

9.3.8 There were also some affirmative views that the law should apply to movement within the UK, as well as movement outwith.  This was seen to be potentially equally distressing for children/parents as movement further afield:

“The issue arises within the UK where a child sometimes removed from Scotland to England. It is clear that the removing parent does not always appreciate the significance of this. The law of Scotland already has the offence of plagium but this is seldom prosecuted. Making child abduction criminal offence would underline the seriousness of such action.”  (Other Organisation)

9.3.9 In contrast, some legal professionals commented that they agreed with the revision applying to taking a child outwith the UK only, not outwith Scotland, for the reasons set out in the consultation paper itself.

9.3.10 As with earlier sections of the consultation, respondents urged that removal must always be in the best interests of the child, and several felt that this often was not the case.  This, they suggested, justified making it a crime:

“There has to be a deterrent for parents or guardians of a child who think that it is appropriate from them to remove the child from the UK without permission. It is certainly not in the best interest of the child to be removed and usually under false pretences.”  (Individual)

“When a parent who has split from the other parent removes the child from their current area to stop the other parent or their family having contact then this should be treated as a criminal offence as they are clearly not thinking of their child and how it will have a major impact on their lives.”  (Individual)

9.3.11 It is important to note that many simply expressed that they did not consider it “right” for children to be removed but did not answer the more nuanced component of the question i.e. around whether such removal (without consent) should be criminalised.  Indeed, there were some mixed views, even among those who supported criminalisation, that this could potentially be a source of trauma to the child (i.e. if a parent was sent to prison or punished too harshly for non-compliance).  This type of vicarious trauma for children should be avoided, wherever possible.  The penalties used to punish the crime would need to be very carefully thought out and be proportionate, it was stressed.

9.3.12 Some individuals reflected on their own personal experiences of having children removed from the UK and stressed that civil proceedings had taken too long and that contact had taken too long to be re-established.

9.3.13 This being said, others who supported the amendment recognised that there would be logistical problems in implementing and enforcing any change to the 1984 Act, and so delays to processing cases and problems with broken contact may not necessarily be reduced or removed by the change.  The introduction of criminal charges may also impact negatively on the duration of civil proceedings being applied to the same case.

9.3.14 Another key concern was how border authorities would know which parents to question about consent (i.e. how would they identify those parents who require consent and those who do not), and how would a parent leaving the UK with their child prove to authorities that consent had been given.  This would require awareness raising among the public, it was suggested:

“There would also need to be a clear way for consent(s) to be given - and a public awareness raising in relation to the new offence and how it could be committed. It would seem that the offence could apply to anyone travelling with children - it is difficult to see how specific individuals of concern could be targeted.”  (Public Body)

9.3.15 Concerns were expressed that considerable work would need to be done cross borders and across the UK to ensure that this worked in practice.   Suggestions (by just one respondent each) included:

• That joint parental consent be checked at border control by means of a certified letter of agreement or another similar document; and
• That children’s passports (or other documents) required to be jointly signed by both parents, to show consent.

9.3.16 Some (including legal organisations and family support organisations) indicated that they perceived it was a necessary change in order to bring Scotland in line with the rest of the UK and to ensure that the language used was up-to-date:

“The [organisation] considers that section 6 of the 1984 Act should be amended to ensure consistency across the UK, i.e. removal by a connected person without appropriate consent should be an offence. The offence should not be restricted to cases where there is an order for "custody" or an order prohibiting removal…This section requires to be updated in any event, as it continues to use the term "custody".”  (Legal Profession)

9.3.17 Finally, comments were made that criminalisation should only apply to long-term planned removal of the child, instead of short periods of leave, including holidays.  While some (mostly individuals) felt that even short-term removal for holidays should require consent, others felt that this was overly punitive.  The views of the child/young person (if able) should be sought, it was suggested and an assessment made of the motivation of the parent removing them from the U.K.  Parents should also be afforded to give a ‘reasonable explanation’ before any charges were brought, suggested one organisation. 

Against the Creation of a Criminal Offence of Removing a Child without Appropriate Consent

9.3.18 The very small number of respondents who did not agree with this change did so on the basis that:

• Some cases may genuinely occur as a result of nativity or lack of awareness on the part of the removing parent about their seriousness of their actions (i.e. no criminal intent);
• The deterrent effects were likely to be minimal and not sufficiently off-putting to parents with a strong intent to remove their child/children; and
• That it would be difficult to implement in practice.

9.3.19 Two organisations also commented that the change could be subject to abuse or manipulation, may result in crimes being alleged in inappropriate circumstances and that it could, in some cases, complicate disputes further:

“If this change was made, it could open up the provision to abuse. For instance, in high-conflict cases, the ability to withdraw consent to a holiday abroad at the last minute and threaten with criminal proceedings could be counterproductive and also used as means to control another parent.”  (Legal Profession)

9.3.20 Some disagreed on the basis that it may prevent some children from travelling in cases which would be to their benefit (e.g. school trips abroad, etc.) and a small number of individuals commented that they felt it was wrong that a parent should ever have to seek consent to take their child out of the UK, especially for holidays and especially if they were the resident parent.

9.3.21 Some simply felt that it was appropriate for any offence of taking a child out of Scotland to continue to relate to a specific breach of a court order, rather than introducing a wider criminal offence.  Indeed, three respondents who did not answer the closed component of this question commented on what they perceived was the disproportionate strength of this measure and the unnecessary criminalisation of this behaviour:

“This is not an issue which has arisen in our casework. We question however whether it is a disproportionate method of dealing with the issue, especially if PRRs are extended as proposed elsewhere in the consultation.”  (Legal Profession)

“…while I think it would be useful for the law to be the same throughout the UK (and this amendment of s.6 would be required), it can also be questioned whether this should be criminalised at all. Thus, I would prefer any reform here to follow on the back of a holistic UK-wide review of the law in this area.”  (Individual)

9.3.22 Finally, several comments were made in response to this question about vulnerable groups.  This included questions around how consent would be achieved if a parent was in prison (especially if not named on the birth certificate), and questions around how cases would be handled where children were being removed for their own safety (e.g. in the case of a violent parent).  Arrangements for looked after and accommodated children may also need to be handled differently.  It was felt that special considerations would be needed to protect some of the most vulnerable children and parents:

“This is a difficult area particularly in relation to domestic abuse cases and where the parent may be fleeing the country and this needs to be considered when making changes to this section.  The law should protect the child from the emotional upset and practical consequences of abduction irrespective of whether there is a current court order regulating exercise of parental rights. There may be a variety of reasons (including cost or perceived trust) why a parent does not take court action to regulate the exercise of PRRs and the child will have little or no influence in this decision. The criminal offence should act as a deterrent to a parent inclined to remove a child which in turn should minimise the trauma/emotional upset suffered by the child him or herself.”  (Local Authority)

9.3.23 Overall, it seems that there was consensus that more needed to be done to prevent child abduction by parents and others with PRRs, and that the existing system could be strengthened or changed, however, the challenge of designing a system that was proportionate and responsive to individual cases was seen as significant.  This was an area where more work may be required prior to a final decision being made:

“In our experience, parents often fail to appreciate the effects of removing a child from his or her country of habitual residence.  Abduction is very much treated as a civil wrong in Scotland.  Because the offence of plagium is not generally prosecuted, people in this jurisdiction do not see it as a crime and are perhaps too cavalier in removing children from the country in the reasonably secure knowledge that they will not be prosecuted.  We can therefore see the merit in considering this issue.” (Other Organisation)