The Hague Abduction Convention

Tuesday 10th March 2015 Westminster Hall

16:30

[Mark Durkan (Foyle) (SDLP)]

It is a pleasure to meet under your chairmanship at this stage of the afternoon, Sir David.

The subject of the debate is The Hague abduction convention, which is more fully known as The Hague convention on the civil aspects of international child abduction. It dates back to 1980 and has force in UK law under the Child Abduction and Custody Act 1985. Many of us, as MPs, will have come across the convention, perhaps from a number of different angles depending on constituents’ experiences. Such experiences can be brought to us either directly or by families whose members want to use the convention to try to ensure the restoration of a parent’s due and wanted relationship with a child, or by constituents or their families who feel that their family has been affected by a case taken under the convention in which their circumstances, or how events unfolded, have not been fully understood or appreciated.

The purpose of the debate is not to pretend that any of us in such cases, or in the general balance or mix of cases that we get, should look at the subject from the perspective of one interest or another, whether that of the parent who has custody of a child or that of the parent who is seeking custody under the convention. The real reason for proposing the topic for debate occurred to me in the light of experience. Some of that experience relates to a particular case; some relates to a few other cases in recent years in my constituency and in the wider area of north-west Northern Ireland.

16:32

Siting suspended for a Division in the House.

16:44

On resuming—

[Mark Durkan]

As I was saying before the Division, I was prompted to introduce the debate by a number of issues and observations that have arisen from cases that have been shared with me by Foyle Women’s Aid—not all relate directly to people in my constituency, but all those involved have been using the support of Foyle Women’s Aid—and from some other cases.

I stress that at no point will I be questioning specific decisions in specific cases, nor will I be naming any of the people involved in the cases. That is partly because of the sensitivity of a current case, which I suppose has most prompted me to raise the issue. Just this week, a woman has had to return to Australia with her child, who was born in my constituency, on the basis of decisions that have been made following a case taken under The Hague convention.

I stress that I am not trying to involve the Minister in anything that would rightfully be within the purview of the devolved Department of Justice in Northern Ireland. Perhaps more importantly, I assure Ministers not just here, but in Northern Ireland, that in no way am I trying to second-guess any decision by any judge of the Northern Ireland courts. I want to be very clear that the Lord Chief Justice should have no concern with any of the aspects of the debate that I will raise here today. I do not believe that Members should use any forum of the House to try to second-guess or overturn decisions of judges or the courts.

Rather, the issues I want to raise today are about whether we as legislators need to give more consideration to The Hague convention as it stands, whether the 1985 Act is sufficient and whether additional light needs to be shed on the issue, given all the experience and understanding we now have in relation to the changes to family life and our understanding of it. There is also greater internationalisation of life now and far more complicated trans-jurisdictional arrangements are in place. Also, a more acute understanding has arisen as to the limited regard that different aspects of the law have had for key principles such as the best interests of the child. There is also the question whether the law is duly responsive to any evidence or allegations that arise about conditions of abuse that might have affected a child or that might affect a partner.

[Jim Shannon (Strangford) (DUP)]

The hon. Gentleman has raised an important issue. A parent whose child has been abducted will be aware that their access to legal aid is restricted. Given the vulnerability of all the parties involved, does he agree that it is vital to ensure that they all have the assurance that they will be represented fairly?

[Mark Durkan]

I thank the hon. Gentleman for raising that point. Legal aid is a key issue for anyone involved at either end of cases such as these, whether they want to bring a case to have their child restored to their custody or they find themselves accused and become a defendant in such a case. The question of legal aid, and the restrictions on it, is particularly acute. Although Ministers have, perhaps understandably, changed position on some elements of legal aid because of more specious cases or cases in which people were testing any sort of claim culture connected to accidents, the fact is that, for a parent, a case about their child is a matter not of calculated choice, but of the emotional imperatives that come with being a parent.

It is important that people should have as much recourse to legal aid as possible, and the decisions around legal aid should be duly sensitised to such situations. Certainly, in a recent case that I know of, a woman has found herself facing a case of child abduction, and on being told to take a child who was born in Northern Ireland back to Australia she found herself in precisely the position whereby she was weakened, so I know this can come on either side of such cases. I am sure that the Minister would be sensitive in all such situations, although we are talking in this case not particularly about one side or another, but about the balance of justice, which goes to the heart of the legal aid questions.

I want to return to the points that particularly concern me, which arise from decisions made recently. I am not concerned because the court made those decisions, but a question arises for legislators and for the Government as the transposing signatory to The Hague convention as to whether we are perhaps leaving courts in a position where they have to take decisions on fairly narrow grounds in fairly shady light, sometimes having to disregard evidence that people try to bring forward in relation to either abuse against them that they allege took place at the hands of the other parent or where they say they have evidence of ill treatment or questionable treatment by the other parent of the child.

It seems that the courts tend to set a very high threshold in relation to consideration of any such evidence, and also then say that it would not be for them to determine anyway, but would be for the court in another jurisdiction if the child was to be returned to that other jurisdiction. It seems that in child abduction cases the courts and the legal profession find themselves almost adopting a standard akin to the rules of the road. For instance, in car accident cases it is automatically presumed that if a person has driven into the back of another car, the liability lies with that person. It does not matter about any other circumstances or conditions; the court does not want to know. It is straightforward.

I hear such a message from people who have handled a number of cases, and the woman who has this week had to return to Australia felt that she was in such a situation. The evidence that she had been raising and pursuing was essentially set aside. That is not because the court did not want to know or because judges wanted to be insensitive to that, but that is not how the law stands and it is not how the law tests such things. Essentially, for the court, the real issue was to decide where the jurisdiction on the matter should rest, and the court has basically said that any of the other issues would be for a court in Australia to decide. That point does not stand alone.

The mother obviously appealed the decision that was made in respect of her and her two and a half-year-old child, but she had to give undertakings. On losing the appeal, she had to sign the following:

“The Appellant agrees not to institute, encourage or pursue any criminal proceedings whether in Northern Ireland or Australia, against the Respondent in respect of any of the allegations made against the Respondent in the course of the Hague Convention proceedings.”

Here we have The Hague convention being operated and brokered via the courts on the basis that, even if there is evidence that could give rise to possible criminal proceedings, as part of the discharge of a case under The Hague convention such evidence is not to be pursued.

As a legislator, I believe that that goes against the grain and the spirit of much of what we have heard from the Government in recent times about more responsive and alert reactions to evidence that arises in different family circumstances.

In this particular case, issues did arise around whether the child was exposed to risk. I do not want to go into any of the particulars of that, but the determination seemed to be that that was not a matter on which the courts would or could hear anything. Again, to my mind, that is inconsistent with the very clear standards that we hear ringing right across all the political institutions in recent times: in relation to the position of children, every effort will be made to ensure that the best interests of the child are fully considered and addressed.

In relation to how such cases are addressed, it seems to be very hard for anyone to find out whether anybody has the role of advocating the best interests of the child. It is not clear that the court is in a position to hear or take the evidence. Perhaps we need to apply some of the yardsticks developed under the Modern Slavery Bill, which states that in some instances there will be a child advocacy service whose responsibilities will be particularly to speak to and address everything on the basis of the best interests of the child. Perhaps that should be applied here.

I hope that the Minister and his Department, and his colleagues in other Departments, because I know this cuts across various Departments, will take the spirit of what has been said on so many other fronts and make sure that it also informs how we go forward with The Hague convention, in terms of how we address it as legislators, how the Government address their role as a signatory and how they take forward their discussion with other Governments in modernising The Hague convention and the various memorandums of understanding that go with that, so that none of what we are saying in relation to child abuse and domestic violence—violence against women or anything else—runs out when it comes to the very important and vexed issue of The Hague convention.

16:57

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

I congratulate the hon. Member for Foyle (Mark Durkan) on obtaining this important debate. I thank him for allowing me to make an extremely brief contribution to add to what he has said about the importance of looking at the issues from the point of view of the child. Like him, I have a particularly difficult constituency case at the moment. I know that the Minister is aware of it. I will not refer specifically to it, but I want to raise the issues that concern me, which add to what the hon. Gentleman has already outlined.

There are issues about the content and operation of the convention, which mean that the best interests of the child are clearly not always served. I understand the importance of the issues of jurisdiction and freezing the situation where it is, but, in the constituency case that I have, it cannot by any stretch of the imagination be in the interests of the child for the decision-making process to take so long. A very young child has not had contact with one of their parents for two years. The likelihood of a relationship developing as one would want between a parent and the child—whether they live with them or simply have contact—is almost impossible. It is extremely heartbreaking and very difficult to deal with.

I am grateful to the Minister for the time that he has given to me and my constituent on this issue, but I do think that, in the circumstances—the hon. Member for Foyle is raising fundamental questions—this is a good time for the Government to say, “Could we be doing more? Should we be raising this in international forums? Should we be looking at how we can have the best interests of the child—as our legislation, the Children Act 1989, puts it—clearly at the centre of what happens?” I look forward to what the Minister will perhaps commit a future Government to doing.

16:59

[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.

17:12

Sitting adjourned.