The Hague Abduction Convention

Simon Hughes Excerpts

Tuesday 10th March 2015 Westminster Hall

[The Minister of State, Ministry of Justice (Simon Hughes)]

I am very happy to be serving under your chairmanship, Sir David. I am grateful to the hon. Member for Foyle (Mark Durkan) for raising this really important issue. I am conscious that I can only deal with his constituency case by factual commentary, as it were, and not by intervention. I am pleased that the hon. Member for Sheffield, Heeley (Meg Munn) has also spoken. I was very happy to accommodate her and her constituent when she raised an issue to do with Ukraine. Clearly that case has dragged on for a long time and I hope that we have been able to at least suggest the best ways forward in a difficult situation.

This issue is really important, as all colleagues know. Child abduction can have a devastating effect on the child, let alone on the other parent, who is left feeling that their rights have been violated. It can hugely damage the relationship between the child and both parents, actually—not just one parent—and the happiness of the family, the extended family and the like.

I would like to respond briefly to the general issue that the hon. Member for Foyle raised and then, because there is a lot of information that I would like to be shared more widely about where people can go for advice and help, I propose to write to him and put a copy of that letter in the Library for public record. I will copy that to the hon. Member for Sheffield, Heeley as well, because I do not think everybody understands what the opportunities are, even though those may not be as extensive as people wish.

The hon. Member for Foyle specifically raised the 1980 Hague convention on child abduction, which is the key document. The purpose of the convention, although it has been there for a long time, is to set up obligations between contracting states aimed at seeking the return of a child, wrongfully taken or wrongfully retained away from the place where the parent believes they should be, to their country of habitual residence. However, it does not provide a legal court that can adjudicate, nor does it determine the parental rights. It provides a mechanism of communication between one country and another, if they are both participating countries in the convention.

The hon. Gentleman raised a case in Northern Ireland that relates to Australia, and the hon. Lady’s case relates to Ukraine. We have accepted the accession of the following countries and work the convention with them: Argentina, Australia, the Bahamas, Belarus, Belize, Brazil, Bulgaria, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Fiji, Honduras, Hong Kong, Israel, Japan, Macau, Mauritius, Mexico, New Zealand, Panama, Peru, St Kitts and Nevis, South Africa, Turkmenistan, the USA, Ukraine, Uruguay, Uzbekistan, Venezuela and Zimbabwe. For those countries, there is an arrangement, but that means that all the other countries do not have an arrangement. Therefore, for families whose child is taken somewhere else, we cannot even avail ourselves of the system that we have at the moment.

The 1980 convention provides a civil law mechanism to allow one parent to seek the return of a child wrongfully removed or retained. It is a summary procedure with the aim of getting the child back as soon as possible, so the court in the country of the child’s habitual residence can make its long-term decisions.

The hon. Gentleman rightly says that the test has to be about the welfare of the child and what is in the child’s best interests. That is what our court applies in England and Wales and what the courts in Northern Ireland and Scotland similarly apply. The test is the best interests of the child, always. The court that is seized with the responsibility will have to make that decision. Sometimes, as in the Ukraine case that the hon. Lady brought to me, in which that decision is going through the Ukraine courts, we have to watch—the parent has to participate if they can—as they make their decision, but we cannot exercise sovereignty over the courts of Ukraine or Australia, because they have their own jurisdiction.

The decision on whether or not to return the child is made by the court, applying the convention, in the country in which the child has been taken or retained. There are defined and limited grounds for non-return under article 13 of the convention. Under article 13(b), if

“there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”

the child does not have to be returned. That is the test under the convention for the foreign court dealing with the case.

The Hague conference, which is the body that oversees that, has no enforcement powers, so we cannot take any country to court if they are not complying. Every four to six years, the Hague conference holds a special commission that allows countries to feed back on the operation of the convention. There have been two supplementary sets of decisions since then to try to make the system more effective internationally.

First, there was Council Regulation 2201/2003—the EU Regulation Brussels IIA—which has provisions to enhance the operation of the convention among EU member states. One such provision is that the court in one member state of the European Union should not refuse to return the child to another member state if protective measures have been put in place to protect the child in the member state of the child’s habitual residence. There is an additional obligation that helps in the EU but does not apply in the two countries that colleagues have specifically raised.

Subsequently, there has been a further development in terms of international agreement: the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children. That was ratified by the UK in 2012 and it provides for greater co-operation between the central authorities in each contracting state, so that information on vulnerable children can be exchanged and measures to protect the child considered at an early stage.

As the hon. Gentleman will know, three different authorities in the UK act as the relevant post box and implementation authority. There is one for England and Wales, one for Scotland and one for Northern Ireland, so he would address, as I am sure he has, his engagement to the authority in Northern Ireland. The hon. Lady addressed hers and that of her constituents to the authority in England and Wales. They act as the agency, and in my experience, having looked at the Ukraine case, they do so very efficiently, but it falls short of what the hon. Gentleman is suggesting that we might need to do, which is beef up the system and decide whether we ought to have additional penalties or actions.

I have just some comments on how frequently this happens, and I have answered a couple of questions recently on the matter from the hon. Member for West Ham (Lyn Brown) and the hon. Member for Hendon (Dr Offord). The central authorities in the UK have shown that, in the years 2009 to 2013, across the UK, the following number of parents have applied for the return of their child from another country under the convention: in 2009, there were 236; in 2010, there were 167; in 2011, there were 214; in 2012, there were 246; and in 2013, there were 243. There were some in each year from England and Wales, Northern Ireland and Scotland, so there is a fairly consistent number of applications.

The courts in this country have prompted a consideration of whether we ought to do more. The previous Lord Chief Justice, I think—rather than the present one—has suggested that the matter ought to be looked at again, so it has been referred to the Law Commission. It reported recently, at the end of last year, and I refer both colleagues to its report, which was called “Simplification of Criminal Law: Kidnapping and Related Offences”. It recommended that kidnapping and false imprisonment, which are currently common-law offences, be made statutory offences, and that the kidnapping offence should be simplified, with some of the current elements of the offence removed and the offence of false imprisonment renamed “unlawful detention” but otherwise remaining unchanged. It recommended that the maximum penalty for child abduction be increased from seven years to 14 years and that the child abduction offence covering parents abducting children out of the UK be extended so that detaining children outside the UK without consent would also be an offence. That is a very important issue, because at the moment it is an offence to take a child illegally; it is not an offence to take the child legally and then not bring them back. That issue has been raised by the hon. Member for Sheffield, Heeley and other colleagues.

Following the report’s publication, the co-chairs of the all-party group on child abduction wrote to my right hon. Friend the Secretary of State in January to ask what action was planned, particularly on the new offences. My right hon. Friend the Minister for Policing, Criminal Justice and Victims, who is a Minister in both the Ministry of Justice and the Home Office, indicated that we would need to consider fully our response. The Law Commission published its impact assessment in February 2015. We, like any Government, have an obligation to respond within six months. We will do that, but self-evidently we will not get the response delivered before the general election. The issue will be on the desk of whoever is in the Ministry. I hope that I will still be the person responsible. I would be very happy to be that person, but that is a matter for a greater decision-making body—namely, the great British public. Let me reassure the hon. Member for Foyle, however, that the question whether we need to do more in the criminal law is very much alive. There is a problem of course, because if, for example, we added extradition to the ability to bring back someone who had taken a child away but was acting illegally and committing an offence, that still would not necessarily get the child back, so the answers are not as easy as we might wish.

I will mention a couple of other things if I may. There is a charity called reunite—the hon. Gentleman and the hon. Lady may have heard of it—which deals with a wide variety of queries on child abduction and operates a 24-hour helpline, funded by the Ministry of Justice. That charity’s statistics for 2014 suggest that domestic abuse is not present in many of the cases that it is involved in; the majority of its cases have to do with the breakdown of a relationship and one parent wanting to return to their home country with the children.

The other thing I should say is that the Foreign and Commonwealth Office regularly intervenes on these issues, is very willing to do so and, on an annual basis, takes up many cases with the authorities in other countries. I assure the House that we do not think that the present system can just be left to work. We do not have an international enforcement system; we have an international communication system, but on the agenda are propositions as to how we might make it stronger. I am open to all ideas and I hope that all those reading the record of this debate, as well as those participating in it, will feel free to send their ideas to us at the Ministry of Justice.

Question put and agreed to.