Parental Child Abduction: Why Extending Criminalisation Is Not The Answer

(MENAFN- The Conversation) The government is proposing a change in the law on parental child abduction. The crime and policing bill, under consideration in parliament, would make it a crime for a parent to take their child on holiday and then not return them at the end of the agreed holiday period. This would be punishable by up to seven years' imprisonment.

The government is attempting to remedy what could be seen as a gap in the law. But this approach fails to take into account what we know about the situations in which this kind of parental child abduction occurs. In many cases, it involves a mother fleeing domestic abuse with her children.

Parental child abduction happens when a child is taken to another country without the other parent's knowledge or consent, or when one parent takes the children abroad for a holiday and keeps them overseas beyond the agreed holiday period. Currently, the recourse for parents left behind is contained in the 1980 Hague Convention on the Civil Aspects of Child Abduction.

This was created with the objective of minimising harm to children. It enables the left-behind parent to apply to the court in the country the children were taken to for their prompt return. The Convention remains the primary legal instrument of response, with 103 signatory member states.

The crime and policing bill currently before Parliament will leave the 1980 Convention untouched but bolster criminal sanctions against parents who take children by amending the Child Abduction Act 1984, which applies to England and Wales.

The 1984 Act made it an offence for a parent to take or send a child out of the jurisdiction without the other parent's consent. The parent who took the children is sanctioned only if police pursue a complaint made by the left-behind parent, which is then subject to a decision by the Crown Prosecution Service to prosecute.

The key focus in existing legislation is the return of children. KieferPix/Shutterstock

Now, the government seeks to strengthen criminal sanctions against parents who fail to return children. But the proposed seven years' imprisonment does not align with what research and practice tells us about parental child abduction in 2025.

Profile of the abductor

There was little hard statistical data available on parental child abduction when the Hague Convention was created. However, the abduction of children was primarily seen as something done by fathers who were not the primary carer of their children.

The picture is now very different. Research conducted in 2015 found that 73% of taking parents were mothers, an increase from earlier years, and of these 91% are primary carers. My research and that of other scholars has found that domestic abuse features heavily in these cases. Essentially, these mothers are taking their children and attempting to escape an abusive situation. Research suggests that domestic abuse may be present in approximately 70% of child abduction cases.

If this amendment proceeds, then mothers who have fled overseas with their children to escape an abusive relationship may refuse to return for fear of prosecution. But through the mechanism set up under the Hague Convention, the children can still be ordered to go back. This proposed change in law takes no account of the impact on children of criminalising the parent who will most often be their primary carer. The potential criminalisation of primary carers will inevitably compound the trauma for children at the centre of these cases.

The reasons for parental child abduction are multifaceted and complex. The forum for resolving family law disputes is the family court, and punitive criminal sanctions are likely to cause harm to children. Furthermore, the potential criminalisation of mothers in the context of domestic abuse flies in the face of current government policy to support victims of abuse. It also fails to prioritise the individual needs of children caught up in parental conflict.

It is disappointing to note that the House of Commons has to date given scant attention to this proposed change to the law. It was not debated at report stage (when MPs have an opportunity to consider amendments to a bill).

Currently there are several members of the House of Lords with expertise in family law. Now that the bill has reached committee stage – a detailed examination of each line – in the House of Lords, I hope that they will draw attention to this issue and persuade others that the change in law should be abandoned. These complex cases should be left to the family court where they properly belong.

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