Criminal and Civil Penalties for Child Abduction

The Court of Appeal has considered the role of penal sanctions in child abduction situations in 2 recent cases. Interestingly Lord Justice McFarlane is the link between the two.
In Re W [2011] EWCA Civ 1196 the court confirmed that an abductor could face repeated committals for on-going failures to either return the child or to provide information as to whereabouts. The necessary pre-condition was that each committal would have to be founded on the breach of a new order rather than an on-going breach of one single order. At each committal the court would consider the proportionality of the use of committal.
In R-v-Kayani and Solliman [2011] EWCA Crim 2871 the Court confirmed that the common law offence of kidnapping could be used in parental child abduction situations but recognised that proof of the 4 ingredients would make its use problematic. The offence under the Child Abduction Act 1984 was much more straightforward to prove BUT the Court expressed the view that the 7 year maximum sentence was too low and should be increased.
In neither case did the Court deprecate the use of penal sanctions in parental child abduction situations but rather confirmed that they were appropriate. It may be that one could argue the Court was dealing with abductions at the extreme end of the spectrum where the child had been hidden away for years and the relationship with the left behind parent irreparably damaged but to interpret them so narrowly would suggest that the lower end of the range of criminal penalties for parental child abduction would or should never be used because offences of less seriousness should not be prosecuted.  The accepted wisdom of the last 20 odd years has been that abducting parents should not be prosecuted and non-prosecution undertakings are commonly sought. It may be that in 'straightforward' primary carer removals or holiday retentions where the child/parent relationship has sustained little damage as a result of the abduction that this pragmatic approach will and should continue however the more one moves away from this situation and where the emotional harm to the left behind parent and child becomes greater there will presumably come a 'threshold' when the harm created by a prosecution of a primary carer will be outweighed by the emotional harm caused by the abduction and the public interest in prosecution. It will be interesting to see whether there is any shift in emphasis in this regard following these robust condemnations in the Court of Appeal. The language used in both is stark in describing the impact of abduction and would suggest that the Court of Appeal does not have the same distaste for the use of criminal penalties that family practitioners in the field have accepted as the natural order of things for so long.