European Arrest Warrants, extradition and child abduction

In many child abduction cases brought under the 1980Hague Convention the left behind parent makes a report to the local police. This is most likely when the case is one of wrongful removal, particularly when covert, rather than in wrongful retention cases. By a strange anomaly a wrongful retention is not an offence under the Child Abduction Act 1984 although wrongful removal is. However very few cases result in criminal proceedings being pursued. This is largely because most left behind parents recognise that the prosecution and imprisonment of the the other parent is not likely to be in the child's welfare interests. This approach is reinforced by the Hague Conference Good Practice Guide which itself suggests that the Requesting State should take steps to ensure that the possibility of a criminal prosecution inhibiting a return order is taken into account by the prosecuting authority. Paradoxically it is in those cases where the child has been removed years ago and where they may very well be settled in the requested state that a prosecution is most likely. I say paradoxically because the Hague Convention recognises that the welfare of a settled child may not be promoted by a return to the country of origin yet it is in this sort of case where the Hague Convention process may well be over-taken by the arrest and extradition of the abducting parent, thus nullifying the 'settlement' defence. In European cases where a European Arrest Warrant can be obtained and which it is nigh on impossible to challenge extradition may be almost automatic.  There has been at least one occasion where the abducting parent returned on the same flight as the child - so what I hear you say- well the child was with the left behind parent and the abducting parent with the police and in handcuffs. It is both interesting, and perhaps reassuring, that so few left behind parents seek to use the criminal law as a remedy in child abduction situations given that it can 'trump' the Hague Convention proceedings. An example of parents putting their child's welfare before their own desire for retribution.

Defeat in the Supreme Court

The Supreme Court of the UK delivered judgment today in the first child abduction case they have considered. The good news was we won many of the arguments. The bad news was we lost the case and our appeal was dismissed. The judgment might lead to a mild relaxation of the courts attitude to mums who wrongly remove their children from their home country to oppose their return where they have been exposed to domestic abuse. Lord Wilson of Culverdon (formerly Lord Justice Wilson) and Baroness Hale of Richmond delivered the judgment of the court. I have been trying to work out who wrote which bit. It was Lord Wilson's first judgment since his appointment in May. The judgment is a good read (even to non child abduction lawyers!) as it is pacey and direct (as the authors are in court) as well as being clear and concise. It might set a new benchmark for this sort of case in England and appears to have discarded most of the body of precedence built up by the High Court and the Court of Appeal over the 25 years since the 1980 Hague Convention was enacted.  The case marked Baroness Scotland of Asthal's return to legal practice after 14 odd years as a government minister. Apart from the odd reference to the other silks as 'my noble friend' (House of Lords speak not Supreme Court speak) it was a welcome return for an advocate who mixes great charisma with passion for the clients cause and inside knowledge of the political aspects. Henry Setright QC put on his wide-brim measured hat to weather the blustery showers of James Turner QC's forthright and abundant rhetoric. Richard Harrison (surely QC next year) and Deirdre Fottrell had both worked so hard on their submissions neither put a foot wrong. As for yours truly apart from managing to raise a muffled titter with a gag about John Snow's election night graphics (I shan't try to repeat it) I had little to say in my supporting role to HSQC. Net result: UKSC 1, HSQC and DW Nil. (Even if they did adopt the analysis of Art 3.1 UNCRC and 1980 Hague Convention that I proposed at the original trial in the High Court; or pretty close to it anyway.)