Crime and Policing Bill

Written evidence submitted by Reunite International Child Abduction Centre (CPB77)

Executive Summary

· Reunite invites Clause 76 of the Crime and Policing Bill 2025 to be adopted, giving effect to the Law Commission’s recommendation that international parental child abduction by wrongful retention should receive the same legal treatment as international parental child abduction by wrongful removal.

· The Law Commission described it as "anomalous" that there is not equal treatment of wrongful retention and wrongful abduction.

· The Law Commission report confirms that "it appears from the debates that Parliament was aware of the possible omission but decided that that was a problem for another time: it did not deliberately choose the narrower wording for reasons of policy".

· A left-behind parent of a wrongfully retained child should have the same legal remedy available to that of a left-behind parent of a wrongfully removed child to seek the return of their child.

· Children and left-behind parents who are the victims of abduction by retention do not suffer any less than those who are victims of abduction by removal.

Reunite International Child Abduction Centre

Reunite International Child Abduction Centre (Reunite) is an NGO part-funded by the Ministry of Justice and the Foreign, Commonwealth and Development Office. Reunite undertakes a number of roles. In particular, the organisation:

a. Provides advice and assistance to those individuals who have had their child abducted, or who have abducted a child;

b. Provides advice and assistance to those individuals who fear their child may be abducted;

c. Provides advice and assistance to individuals in relation to relocation and international contact issues;

d. Seeks, nationally and internationally, to raise awareness and understanding of international parental abduction generally, and of the relevant legal instruments that are concerned with international child abduction;

e. Co-operates and works closely with the Ministry of Justice, the Foreign, Commonwealth & Development Office, and overseas statutory and voluntary bodies, seeking to bring about satisfactory outcomes to child abduction cases;

f. Provides training to interested parties – such as police officers and lawyers – about the law relating to international parental child abduction; and

g. Provides a specialist mediation service for parents involved in international disputes relating to their children;

In recent years, Reunite has generally received an ever-increasing number of child abduction case referrals. For example in the calendar year 2024, Reunite dealt with in excess of 450 new child abduction cases and in excess of 1,300 new cases overall.

Currently children who have been retained outside the jurisdiction do not have the same legal protection as children who are wrongly removed from the jurisdiction. Addressing the disparity of the legal treatments available to secure their safe return to their home country is an urgent need and is the motivation behind Reunite making this submission.

The Legal Background

1. Section 1 of the Child Abduction Act 1984 ("the CAA") makes it a criminal offence for a parent to take or send a child out of the UK without the appropriate consent. Part of the justification for introducing S.1 of the CAA was that if the child has been taken out of the UK, then they have also been taken outside the jurisdiction of the civil court, making it harder for that court to make and enforce any decision about where the child should live.

2. The CAA supplemented the pre-existing common law offence of kidnapping. As it stands, the same act of child abduction may constitute both offences. However, neither of these offences cover the scenario where a child is lawfully removed from the jurisdiction by a parent (for example, leaving the country for a short consensual holiday visit) and then the parent refuses to return the child at the end of the agreed period in breach of the rights of custody of the left-behind parent.

3. In the civil arena, the Child Abduction and Custody Act 1985 ("the CACA") incorporated the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the 1980 Hague Convention") into English domestic law. This provides a civil means for a left-behind parent to seek the summary return of their child who has been the subject of international child abduction. For cases where the child has been abducted to a non-Hague Convention country, the High Court’s inherent jurisdiction may be utilised.

Two Types of Abduction; Wrongful Removal vs. Wrongful Retention

4. The 1980 Hague Convention specifically provides for two different types of child abduction, one of its objectives being "to secure the prompt return of children wrongfully removed to or retained in any contracting states" (emphasis added).

5. The requirements for both types of abduction are the same, save that for wrongful removal the child is taken from his country of habitual residence to another in breach of the rights of custody of the left-behind parent, and for wrongful retention the child is retained outside his country of habitual residence in breach of the rights of custody of the left-behind parent. Both types of abduction receive the same treatment when the court is considering a summary return of the child – neither is seen as more serious or more likely to result in a return.

6. Yet this is not mirrored in the CAA, which makes no mention of abduction by retention and only refers to it being an offence to take or send a child out of the United Kingdom.

7. The case of R (on the application of Nicolaou) v Redbridge Magistrates’ Court [1] dealt directly with this issue. The court in that case was tasked with answering: "Is an offence committed if the appropriate consent is given for the child to be removed from the United Kingdom for a defined period but the child is kept out of the United Kingdom after the period has expired and the appropriate consent no longer exists?" [2] . In short, the answer was no. The court in Nicolaou considered that, as a matter of ordinary language, "takes or sends" cannot refer to the continuing act of keeping a child abroad and had the draughtsman intended S.1(1) of the CAA to apply to a situation where the initial removal was done with consent, there would have been a clear signal that "take out" was intended to have an enlarged scope.

The Current Wrongful Retention Loophole

8. At present, and as confirmed in Nicolaou, a child wrongfully retained outside the jurisdiction can’t be returned through a criminal process. In cases where the child has been wrongfully removed, the left-behind parent can contact the police and instigate criminal proceedings, as well as seeking the child’s return through the family courts. This can put the left-behind parent at a significant advantage compared with parents whose child has been wrongfully retained.

9. Child abduction by wrongful removal being a criminal offence provides an important deterrent, as the risk of punishment inherent in all criminalised offences may in some cases be sufficient to make the abducting parent think twice before taking action. It also gives the left-behind parent access to far greater resources and potential practical benefits when seeking the return of their child. For example:

· National police and Interpol can assist in locating the abducting parent and child. Without assistance from law enforcement agencies, this can prove difficult for a left-behind parent in some countries.

· The UK has extradition agreements with some non-Hague Convention countries, which can assist in practically securing the return of the abducted child.

· The risk of arrest and imprisonment for a term of years on an eventual return to the UK may encourage an agreed return of the child on the basis that the left-behind parent does not pursue criminal charges.

· The criminal process can reduce the risk of onward abduction. For example, where a suspect is on Interpol’s list, detection and detention on attempted entry to countries such as the USA is likely.

10. None of the above resources are available to a left-behind parent whose child has been wrongfully retained from the UK, making it more difficult to locate and secure the return of the child.

11. In the 2011 case of R v Kayani; R v Solliman [3] , which concerned joint appeals by fathers against sentences for offences under S.1 of the CAA, the Lord Chief Justice noted that child abduction offences had "become increasingly troublesome" [4] . He went on to highlight the severity of child abduction and dismissed the appeals. The Lord Chief Justice commented that:

"The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent…where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate" [54 and 56].

12. In both appeals, the left-behind mothers had suffered extreme emotional hardship, the children had been deprived of a relationship with their mothers and the periods of abduction were prolonged. All of those factors can be equally true of a wrongful retention as they are when a child is wrongfully removed. In those circumstances, it is clear that it would be dissatisfactory and contrary to the interests of justice to leave the statute such that there is no criminal offence if the child is wrongfully retained rather than wrongfully removed.

13. It is crucial to highlight that around 40% of international parental child abduction cases are wrongful retentions. That is a very significant percentage of abduction cases where there is therefore no criminal process available to the left-behind parent to assist in securing the return of the child.

14. In the wake of Nicolaou and Kayani, the Law Commission filed a report dealing specifically with the lacuna in child abduction offences. The 2014 Law Commission Report on Simplification of Criminal Law: Kidnapping and Related Offences made a clear recommendation to "criminalise child retention by parents or connected persons by amending section 1 of the Child Abduction Act 1984" [5] . As highlighted within their report, wrongful retention, just like wrongful abduction, frustrates the process of the civil court by keeping the child out of its jurisdiction. The Law Commission described it as "anomalous" that there is not equal treatment of wrongful retention and wrongful abduction in the criminal context. Reunite echoes that view.

15. We are now over a decade after the Law Commission made clear recommendations in favour of extending the CAA to cover wrongful retention. In that time, astute parents have been able to take advantage of the current loophole which means they will not face criminal consequences for wrongfully retaining a child and the left-behind parent is denied the resources to assist with securing the return of their child.

16. Whilst one might argue that a planned, clandestine abduction by way of wrongful removal is more harmful than an unplanned wrongful retention at the end of a holiday, any differences to the harm suffered by the child and the left-behind parent are negligible. The relationship between the child and left-behind parent is equally likely to be impacted by the abduction, it will still cause instability and disruption for the child who has been removed from their home, school, friendship circles and family, and the risks of emotional, physical and psychological harm are similar.

17. Yet under the current law, one of these scenarios will open the door to comprehensive criminal proceedings, with the attached deterrent effect, and the other avoids it completely.

18. It is not anticipated that the criminalisation of wrongful retention would have any negative impact on the operation of the Family Courts and the means of redress via the 1980 Hague Convention or under the inherent jurisdiction. Civil and criminal proceedings can continue to operate in tandem where appropriate.

19. The Law Commission report confirms that "it appears from the debates that Parliament was aware of the possible omission but decided that that was a problem for another time: it did not deliberately choose the narrower wording for reasons of policy" [6] . This suggests that it was known the existing legislation would give risk to a problem as a result of the omission of any offence of abduction by wrongful retention. It was also contemplated that problem might have to be rectified at a later date. More than forty years later, the time has undoubtedly come for wrongful retention to be criminalised.

Reunite’s Recommendation

20. Reunite takes the firm view that the current position under the CAA is unfair, unhelpful and against the interests of justice. There ought to be parity in the way that both types of abduction are treated in the criminal courts, giving children retained wrongfully outside the jurisdiction the equal opportunity to be returned to their country of residence.

21. Reunite would strongly urge Parliament to adopt Clause 76 of the Crime and Policing Bill 2025 in its entirety, amending the CAA to make child abduction by way of retention a criminal offence.

April 2025

---

[1] [2012] EWHC 1647 (Admin)

[2] At [1]

[3] [2011] EWCA Crim 2871

[4] At [1]

[5] At para 5.1(2)

[6] At para 3.49