International Child Abduction

David Simmonds Excerpts

Wednesday 22nd March 2023 Westminster Hall

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

I beg to move,

That this House has considered the matter of support for parents affected by international child abduction.

Once again, it is a pleasure to serve under you this afternoon, Mrs Cummins. The subject matter of this afternoon’s debate encompasses some enormously difficult issues for our constituents affected, many of whom are with us today, arising, as it does, from matters of family breakdown and often a history of drawn-out and sometimes painful litigation.

I think I need to be clear that it is not for us, here in Parliament, to rehash the arguments on either side of individual cases, nor to seek to make any kind of judgment about the merits of the family and sometimes criminal proceedings that have played a part in the situation that our constituents now face. Having served as a magistrate myself, I have confidence in the due process of law in all of our courts, and in the soundness of their judgments in respect of my constituent and others. The purpose of the debate is to seek action to bring about the enforcement of the decisions of our courts in international law where due process has been followed but not consistently respected.

This starts as a matter drawn to the attention of the House in the Justice Select Committee’s third special report of Session 2017-19, which covers the legal implications of Brexit for our justice system. The report highlights the risks of not having effective means to put into effect legal judgments where children have been abducted. As ample evidence and research demonstrate, the longer the duration of the abduction, the greater the negative impact on all concerned, so time is clearly of the essence.

I want to place on record my thanks to other Members —some are here to contribute to today’s debate—in particular my right hon. Friend the Member for Witham (Priti Patel), who has similarly affected constituents and who has taken an active interest in the issue and helped me to understand how we might support our constituents more effectively. I appreciate that, due to a prior commitment relating to the Westminster bridge terror attack, she is unable to be here today, but she has made points that I have incorporated into my remarks. I am also grateful to my hon. Friends the Members for Wealden (Ms Ghani) and for Bolsover (Mark Fletcher), and the hon. Members for Hammersmith (Andy Slaughter) and for Putney (Fleur Anderson), who have approached me to express an interest in the matter because they have constituents affected by it.

In respect of the cases that have been brought to the attention of Members by constituents, it is important to state, without going into the detail of any of them, that due process in the UK has resulted in a parent having custody, sole or shared, of their child, and the children have then subsequently been removed without the consent of the parent—in the case of my constituent to Poland. As Members might be aware, one objective of the convention on the civil aspects of international child abduction, which was concluded at The Hague on 25 October 1980 and is known as The Hague convention, is to protect children in international law from the harmful effects of wrongful removal, or retention away from the parent with whom they should live, and to ensure that procedures are in place to ensure their prompt return to the state of their habitual residence. That convention, which entered into force on 1 December 1983, was ratified by all European Union member states.

Article 1(a) sets out

“to secure the prompt return of children wrongfully removed…or retained in any Contracting State”.

Article 2 states:

“Contracting States shall take all appropriate measures”—

appropriate measures is an important phrase—

“to secure within their territories the implementation of the objects of the Convention.”

It goes on:

“For this purpose they shall use the most expeditious procedures available.”

It is important to note that The Hague convention is not the only legal basis that parents of abducted children may use. We hear Brussels II and IIa often mentioned as legal avenues that can be pursued, which are subject to the proceedings having taken place when the UK was an EU member state. Following the same principle as The Hague convention, it is essentially mutual recognition of the orders of each other’s courts being embodied in the treaties that underpinned membership.

Mutual recognition requires each country to respect the integrity of due process in another’s territory. Given the time-critical nature of child abduction cases, the so-called non-appealability, or finality, of such decisions is an important feature. As a matter of course, the UK respects such judgments, as do almost all the countries that are signatories to The Hague convention.

The Justice Committee’s report states that child abduction is among the issues to which the Brussels II provisions apply. It refers to the very complex relationship with The Hague convention, but also sets out that the provisions take precedence in setting out a legal means to bring about a swift resolution of problems when they arise. The report goes on to set out what type of arrangements there might be and what expectations there would be of member states to ensure that those expectations were swiftly met.

Disappointingly, what is very clear is that many Members present have been contacted by their constituents once it is clear that what should be a transparent, straightforward and extremely swift process has not been followed by the authorities in another country—in my constituent’s case, that was Poland—and they are seeking the assistance of the UK Government to enforce the law. This is not a request to go beyond anything that is already enshrined in law; it is simply a matter of enforcing the law that our international agreements recognise.

While there has been considerable ongoing engagement with the Foreign, Commonwealth and Development Office and Ministers, including meetings with, among others, the Minister for Europe, my hon. Friend the Member for Aldershot (Leo Docherty), and the British ambassador to Poland, the response and assistance from the Polish authorities in particular has been very disappointing. That is particularly true at the local level, where the enforcement of court orders by the police and court-appointed curators is critical to ensuring the successful return of children. Unfortunately, the experience of my constituent is not unique. We can see from the number of Members present and those who have expressed an interest that there appears to be a common theme, particularly where the children have been taken to Poland.

On 26 January, the European Commission launched an infringement procedure against Poland by sending a letter of formal notice to it for its failure to fulfil its obligations under the Brussels IIa regulation. That infringement case concerns the non-conformity of Polish law with the Brussels IIa regulation, specifically to the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their country of habitual residence. So, at EU level, the situation has reached a point where the Commission considers there to have been a systematic and persistent failure of the Polish authorities to speedily and effectively enforce the judgments to which they have committed under international law and order the return of abducted children to EU member states. This is not simply a problem affecting our constituents here in the UK; it is a matter of some moment across Europe.

Separately to this case, a matter has been heard in the European Court of Justice, where a Polish court of appeal asked the ECJ whether, in accordance with the Brussels II provisions and The Hague convention, it could provide an additional stage of appeal, which would in effect result in an automatic delaying tactic in Poland. It would mean that the enforcement of a final return order, which under international law should be expedited, would be at best delayed, on a simple request by one of the various authorities lodging such an appeal.

In January, the response of the advocate general of the European Union argued that, by adopting such a provision, the Polish legislature had exceeded the limits of its competence and had rendered the return proceedings ineffective. That is the source of the enormous frustration that so many of us are facing with our constituents. Due process of law in the United Kingdom and other countries has resulted in an outcome—an outcome where we are not required to judge the merits, but where we can have confidence in the due process of law—and yet that outcome is simply not being respected.

Given these cases before the European Union and matters that have been dealt with in the UK, it is perhaps not surprising that constituents are approaching their Members of Parliament. They have little faith that the due process of law will result in the relevant authorities delivering on the required court orders to return their children to the United Kingdom.

As well as the legal issues that I have set out, we need to recognise that the extensive delays and the enormous cost of engaging this process have placed a huge and sometimes nearly intolerable burden on many constituents. International law, and law in general, is there to ensure that justice is done and wrongs are put right. It is very clear to date that we are not seeing these significant wrongs put right.

The question then becomes: what recourse do our constituents have when they face such a situation? The legalities are very clearcut. It is highly likely that a case that was taken to the European Court of Human Rights would result in a finding against the Polish authorities, but that is of no comfort when the situation of the abducted children remains exactly as it was before, and a compensation payment and note of wrongdoing simply do not bring about anything like the resolution required by the affected families.

The proceedings brought by the European Union are likely to take a long time to reach a conclusion, and they will certainly test the limits of what power the European Union has when a member state simply refuses to abide by a treaty that it has freely signed. In the circumstances, we must pay tribute to the determination of all these parents—mums and dads—who are continuing to fight for the return of their children in a truly remarkable way. Yet we simply cannot treat each as an isolated case when there are so many consistent themes emerging.

I will move to my conclusion. While my right hon. Friend the Member for Witham set out to welcome the support that the Government have provided thus far, the fact is that in the case of her constituent, as well as a number of similar cases linked to other Members, the children are still overseas, despite court orders for their return, and there is still much work to be done to reunite them with their families here.

Poland is an old and important ally of the UK. Our friendship dates back many years, and my constituency and local area is home to many of Polish heritage. The nearby Polish war memorial in the Uxbridge and South Ruislip constituency celebrates our shared military endeavours in world war two. We should not face a situation where a trusted and valued ally refuses to reciprocate the respect that we show to the judgment of their courts, as required under international law. My ask of the Minister is this. We need to take seriously the plight of our constituents and their abducted children and, in the spirit of what is and will remain a strong and friendly relationship with an important ally, place the evidence before their Government and seek swift and just compliance, with the decisions arising from the due process of law, as our international legal framework requires.

[Several hon. Members rose—]

--- Later in debate ---

[David Simmonds]

May I start by sharing an apology and a thank you for the patience shown by the many who have come to listen to today’s debate? We have had to break off a number of times to vote, but it is great that Members have returned to the Chamber and continued to engage fully in proceedings.

I also say thank you to the hon. Member for Hammersmith (Andy Slaughter), my hon. Friend the Member for Bolsover (Mark Fletcher), the hon. Member for Putney (Fleur Anderson), my hon. Friends the Members for Hendon (Dr Offord) and for Woking (Mr Lord), and the hon. Members for Airdrie and Shotts (Ms Qaisar) and for Enfield, Southgate (Bambos Charalambous) for their contributions to the debate. I was heartened to hear from my hon. Friend the Member for Hendon that he had enjoyed some success in supporting constituents with returning abducted children to the UK. Particularly when dealing with such a difficult topic, it is really positive to hear examples of that.

The hon. Member for Enfield, Southgate referred to the challenges for parents where children have been removed to countries that have different laws from those that apply where the parent is habitually resident. In many of those cases, and certainly in my constituent’s case, the country does not have different laws; it is part of an international legal framework, intended to mutually recognise each other’s orders. However, the challenge is that there are examples of countries—some of which are part of that framework, such as Croatia, Austria and Poland, and some of which, such as the Turkish Republic of Northern Cyprus, are not—that are simply not fulfilling their obligations.

Due process is totally clear: a court has found in a particular way, and the challenge now is ensuring that the outcome of that legal process is respected. As the hon. Member for Putney referenced, some countries, such as the UK and Australia, are seen as exemplars for respecting their international obligations and ensuring that children are returned, usually within a six-week period of the order needing to be enforced. In Poland, the rate is around 5%, which demonstrates that there is a significant challenge, which is a consistent theme running through the cases of many in the Public Gallery today.

I will conclude by addressing a point that a number of Members have highlighted: the enormous burden that this situation places on family members. We have heard lots of examples of people, including my constituent, who had to sell their homes to finance the legal battle simply to enforce a legal judgment that should be respected under international law. We have heard examples of the effect of that on people’s health and wellbeing, and on the wider family, grandparents and extended family members.

What is clear is that, while my constituent has my absolute deepest sympathy—as a father of young children, I feel for him—he does not need my sympathy. What he needs is for us to ensure that the political and diplomatic challenge of persuading countries that are our allies to carry out their obligations under international law happens. We must not allow a situation to persist for a moment longer where too many parents, who may be part of shared custody arrangements, have their children unjustly deprived of their loving care.

Question put and agreed to.

Resolved,

That this House has considered the matter of support for parents affected by international child abduction.