Instead we are all too aware of the growing problem of child abductions perpetrated by parents.

The Crime Statistics on child abduction for 2013/14 show that police forces in England and Wales recorded 569 offences of child abduction (Office for National Statistics 2014). This compares to 513 offences the previous year, an increase of 11%. This is the first increase in a decade. There is no available explanation for this increase. In addition, this is an area of crime widely considered to go unreported to a significant extent, perhaps because of the familial context or because civil family courts may be seized of these cases. Only one in five of these abductions are carried out by strangers, according to the analysis of previous years’ crime statistics by

A result of LASPO?

However, this increase does seem to coincide with the most far-reaching changes ever made to the availability of legal aid by virtue of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into effect in April 2013. Is it the case, as many involved in the administration of justice had predicted, that people are taking the law into their own hands? In an interview with the BBC in 2013 Lord Neuberger, President of the Supreme Court and the UK’s most senior judge, predicted that: “the removal of legal aid for people to get advice about law and get representation in court will start to undermine the rule of law because people will feel that the government isn’t giving them access to justice in all sorts of cases and that will either lead to frustration and lack of confidence in the system, or it will lead to people taking the law into their own hands.”

The Hague Convention, wrongful removal and Re K

Another kind of revolutionary change has occurred over recent months, perhaps with perfect timing given the largest increase in the incidence of child abduction reported to the police in England and Wales for ten years. There was no fanfare of publicity to announce this change in the law in relation to child abduction and the Hague Convention. However, Re K (A child) (Northern Ireland) [2014] UKSC 29 has heralded the biggest change in the law relating to abduction and so called “inchoate rights” and “rights of custody” in over 30 years, indeed since the Convention’s adoption in 1980.

In Re K the Supreme Court grappled with this difficult and confusing area of the law on abduction. Lady Hale gives the leading judgment. The principal changes relate to the ambit of the Hague Convention and when it is applicable. Those most affected by the changes are unmarried fathers without parental responsibility.

For the Hague Convention to apply and for your client to avail themselves of the heavyweight powers that accompany it – such as mandatory return to the UK if the application is made within 12 months of the wrongful removal (if made after 12 months it is discretionary) – it has to be shown that there is a “wrongful removal” as defined in the Convention. And there’s the snag.

This comes in the form of Article 3 of the Convention (and now Brussels II Revised Regulation) which says that a removal is only “wrongful” if it breaches “custody rights”. Unfortunately, the Courts of Appeal in England and Wales and Northern Ireland have had different ideas about what this meant and it was left to Lady Hale and her fellow justices in the Supreme Court to resolve.

Good news and bad news

The good news is that it has now finally been resolved, some 35 years after the Convention came into operation. The bad news is that unmarried fathers without parental responsibility (PR) can no longer present an argument that they come under the Convention in what are called “inchoate rights cases”. (If the father has PR, he’s ok; he has “custody rights”.) “Inchoate rights cases” are where it is argued that by having contact with a child and/or having a parental role toward that child, (and in some cases as a result of having the locus to make an application at court in respect of that child), this is sufficient “custody rights” and affords the protection of the Convention and thus ensures the return of abducted children.

Following Re K, most of these arguments can no longer be run. If you attempt to do so, you will receive a letter from the International Child Abduction Contact Unit department of the Official Solicitor pointing you to Re K and informing you that you cannot run that argument, as I did, not long after the case was published.

England and Wales has been fairly singular in its wider interpretation of “custody rights” through the “inchoate rights” case law. There has been very little support for this interpretation in the other member states. Not an unusual position for the UK to be in.

What is most significant, though, in Re K, is that although their scope has been narrowed and refined, the court decided that “inchoate rights” should remain a potential option, favouring a “flexible interpretation” as to what amounts to “custody rights”. It rejected the argument for narrow interpretation (as adopted by most other member states). The court also decided that each member state is entitled to decide for itself what constitutes “custody rights” for the purposes of the Convention, so those who concerned about the sovereignty of UK courts can rest assured.

“Rights of custody” have long been distinguished from “rights of access”. The latter, in the context of a removal, is not considered “so harmful that the child must be instantly returned” and very importantly, would not have the benefit of the mandatory requirement that it must be a UK court that makes the long-term decisions as to the child’s future, as would be the case in the former. This means that the country to which the child has been taken could take any such decisions.

However, Article 21 of the Convention deals with “rights of access” and has provisions to enforce contact, even though there will be no way of arguing for an immediate return. Our old friend “Inherent Jurisdiction” can still be employed for benefit of seeking immediate returns in these types of cases, albeit at a much more sedentary pace and with uncertain results.

Perhaps the main lesson to be taken from this is for unmarried fathers, whose name does not appear on the birth certificate of their child, to get an order for PR – and particularly promptly if the child’s mother is not a UK national.

As a final comment, it is worth noting that a father in this position (as for any father wishing to make any application in respect of their children) would not qualify for legal aid under the current rules…

“Rights of custody” post-Re K

The conclusion reached by the court is that those with “rights of custody” to which the Article 3 of the Convention will apply are as follows:

  1. “They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers entailed in the primary care of the child.” This applies even if the parent does not have PR.
  2. “They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up.” So not sharing care with another person who has PR.
  3. “That person or persons must have either have abandoned the child or delegated his primary care to them”.
  4. “There must be some form of legal or official recognition of their position in the country of habitual residence (this is to distinguish those whose care of the child is lawful from those whose care is not lawful e.g. the payments of state child-related benefits or parental maintenance for the child)”.
  5. “And there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long term future of the child could be determined in those courts in accordance with his best interests, and not by the pre-emptive strike of abduction”.

Contributor Marie Crawford, Becket Chambers