Necessity is no defence to criminal child abduction cases. This was the result of a hearing in the Court of Appeal that was published 8th May 2012.
The Court of Appeal dismissed the appeal by an appellant, who is known as CS, against her criminal conviction at Portsmouth Crown Court in July 2011 for removing a child from the jurisdiction. CS had claimed she had removed the child out of necessity, for the child’s protection.
Swain & Co.’s specialist family lawyers explain that the Child Abduction Act states that it is an offence for a person to take or send a child out of the UK without proper consent. This is for the protection of the child and aims to keep the child in the jurisdiction of the UK, as enforcing UK jurisdiction outside of the country is more difficult.
CS and Mr S had a daughter in 2000, but later separated, divorcing in 2002.
In the course of proceedings in the Family Court, CS alleged that Mr S had sexually abused their daughter. However, the Judge found that sexual abuse had not taken place. The Judge made an order prohibiting either CS or Mr S from removing their daughter from England and Wales for longer than 3 days without the prior permission of the other party or permission from the court.
GS took her daughter to Gibraltar in 2010 and breached the order. Her proposed defence to the charge of child abduction was that she honestly and reasonably believed that her daughter was at imminent risk from sexual abuse and the only way to prevent that was to remove her from the country.
The Judge held that the legislation did not permit a defence of necessity and that the Act sought to ensure arrangements that were in the best interest of the child.
Our expert family lawyers are pleased that the court upheld the child’s interest in this case as there was no substantiated case of sexual abuse. But, we are disappointed that the case judgment failed to decide on the issue as to whether a defence might arise where a parent wished to refrain from handing a child to another person in the jurisdiction who might subject that child to abuse. This was not the matter at hand, the Judge said.
Child care matters can be very sensitive where abuse allegations are made, or if one of the separated parents has been subjected to domestic violence from the other. Please do not suffer in silence; we have specialist family solicitors who deal with child care arrangements and domestic violence matters.
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