Part 1 of the Children (Scotland) Act 1995: review

Part 8: Child Abduction by parents

Introduction

8.01 In this section of the consultation, we are seeking views on how civil and criminal child abduction by parents can be further prevented.

8.02 The Central Authority for Scotland team, which is part of the Justice Directorate with the Scottish Government, has produced the statistics below on the number of Parental Child Abduction cases handled by them under the Hague Convention and Brussels IIA. See Annex D for further information on Brussels IIA.

Year	Incoming	Outgoing
2007	6	2
2008	7	10
2009	10	12
2010	12	10
2011	15	9
2012	6	16
2013	26	16
2014	17	13
2015	25	16
2016	13	20

8.03 The Central Authority for Scotland’s role in relation to Hague Convention abduction cases is to ensure all necessary information is transmitted to the appropriate parties and to monitor progress once legal representation has been arranged for the applicant in incoming cases and to liaise with the other Central Authority and the applicant in outgoing cases.

8.04 SLAB data shows that in 2016/17 they received 21 applications for child abduction cases under the Hague Convention. Of these 19 applications were granted, one was refused and one was abandoned.

Civil procedure

8.05 There may be a need for a minor change to Section 2 of the 1995 Act.

8.06 Section 2(3) of the 1995 Act provides that:

“Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.”

8.07 Section 2(6) of the 1995 Act provides that:

“The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above [relating to residence and contact]; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both”.

8.08 One reason why a person is not “exercising” their rights as defined in section 2(6) of the 1995 Act may be because the child is now outwith the United Kingdom. Given this, it may be helpful to change the reference to “exercising” (or define “exercising”) so that a person unable to exercise rights because of a removal is not excluded.

Question 30): 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?
Yes
No
Why did you select your answer above?

Criminal procedure

Background

8.09 In Scotland, there is a common law offence (one not defined in statute) of plagium. This is a crime of child stealing which may be committed against children below the age of puberty. It is also a crime (abduction) to carry off or confine any person against their will without lawful authority. Further information on these two offences can be found in the SLC report of 1987 ^[72] . Annex E gives further details of statistics on child abduction and plagium.

8.10 There are also specific statutory offences in the Child Abduction Act 1984 (the 1984 Act). This extends to England and Wales and Scotland, but makes different provision for Scotland.

8.11 Section 1 of the 1984 Act makes it a criminal offence in the law of England and Wales for a person connected with a child under the age of 16, such as a parent, to take or send the child out of the United Kingdom without the appropriate consent.

8.12 Section 6 of the 1984 Act makes it a criminal offence in the law of Scotland for a person connected with a child under 16 to take or send the child out of the United Kingdom without the appropriate consent, but only where there is a court order from a court in the UK on custody or from a court in England, Wales or Northern Ireland making the child a ward of court. In addition, under section 6 of the 1984 Act, it is a criminal offence in Scotland to take a child out of the United Kingdom if there is an order from a court in the UK prohibiting the removal of the child from the UK or any part of it.

8.13 Following recent representations, we are considering whether section 6 of the 1984 Act needs to be amended to make it a criminal offence in Scotland, as in England and Wales, for a person connected with a child to remove that child without the appropriate consent.

8.14 Our proposals would not alter the existing offence in Scotland of removing a child from the UK or any part of it contrary to a specific court order prohibiting such removal. However, the references in section 6 of the 1984 Act to court orders awarding custody or residence to a person and to court orders making the child a ward of court would be repealed and replaced with a more general offence about removing a child without the appropriate consent.

Pros/Cons

8.15 Amending the legislation could benefit a child as it would mean a court order is not required for it to be an offence to remove them from Scotland without appropriate consent. However, any change would require further consideration of a number of issues.

8.16 Firstly, whether the offence in any revised section 6 should apply to taking a child out of Scotland or out of the United Kingdom without appropriate consent.

8.17 We are aware that cross- UK border family cases involving children are not always straightforward. There is discussion on this in part 5 of this consultation. However, it appears to us that it is appropriate for the criminal offence to continue to relate to taking or sending the child out of the United Kingdom as:

• It is possible to obtain an interdict to stop a child being removed from Scotland. Please see section 35 of the Family Law Act 1986 (the 1986 Act) and section 11(2)(f) of the 1995 Act.

• There may be regular, lawful and day to day cross-border traffic across the border between Scotland and England.
• Section 6 of the 1984 Act as it stands makes it a criminal offence in the law of Scotland to remove a child from any part of the UK contrary to a court order. It seems appropriate for any offence on taking a child out of Scotland to continue to relate to a specific breach of a court order, rather than introduce a wider criminal offence.

8.18 Secondly, further consideration would be needed as to who could be accused and convicted of the offence. Both section 6 and section 1 of the 1984 Act refer to a person “connected with a child”. The relevant provisions then reflect the different legislation in place in Scotland and in England and Wales. In our view, the offence is aimed at prohibiting parental child abduction when the child subject to the law of Scotland is taken out of the UK without the appropriate consent.

8.19 However, the offence could be committed by somebody other than a parent – eg by somebody who has PRRs in relation to the child. It is possible that a person connected with the child may have obtained (the equivalent of) PRRs elsewhere in the UK (the current drafting of section 6 of the 1984 Act recognises that court orders may have been made elsewhere in the UK) or from overseas (either within the EU or outwith the EU).

8.20 Since the 1984 Act was drafted, the EU Regulation 2201/2003 [Brussels IIa] on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility has come into force (and is currently being renegotiated) ^[73] . In addition, families are becoming increasingly international. Therefore, we consider that if section 6 of the 1984 Act is amended, any revised offence of taking or sending a child out of the UK without the appropriate consent could be committed by:

• A parent or guardian of the child; or
• A person who has (any) PRRs and has been awarded these in Scotland; or
• A person who has obtained the equivalent of (any) PRRs for the child in a jurisdiction other than Scotland. We would need to consider how the parental responsibility status in another country would be proved as this could potentially be difficult.

8.21 The third area for further consideration is whose consent is needed to remove a child from Scotland. We consider that the logical approach here is to align the criminal offence at section 6 of the 1984 Act with the civil law at section 2 of the 1995 Act.

8.22 Therefore, to take a child out of the UK, consent would be needed from either any person exercising PRRs in relation to residence or contact or from both parents, if both are exercising PRRs. Again, the legislation could reflect PRRs awarded in Scotland or in another country. We would need to consider how the parental responsibility status in another country would be proved as this could potentially be difficult.

Question 31): 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?
Yes
No
Why did you select your answer above?