Child abduction is a criminal offence. It requires covert departure from the UK to another country, and from the abductor’s point of view preferably one that is not in Europe, not a signatory to the Hague Convention and that does not have a bilateral agreement with the UK. The incredibly extensive powers available to the High Court include ‘port stop’ orders for prevention of undetected departure or entry and obtaining various records of the abductor and family members from third parties in order to locate the missing child. All this is intended to and does make child abduction very difficult and very risky.

Some parents, though, have cottoned on to the use of a loophole in immigration laws that allow a very effective form of child abduction without any of the inconvenience. All the cases I have seen or heard of have involved a female foreign spouse. Unlike in forced marriage cases or conventional child abductions, Government officials turn a blind eye. And recent immigration law changes exacerbate the situation for victims, who are not just the stranded spouses but also the children.

When a foreign spouse enters the UK, he or she is now granted five years of permission to stay, which can be upgraded to permanent settlement (‘Indefinite Leave to Remain’) at the end of that period. The initial grant of entry, often called the probationary period, used to be two years until July 2012. Children may well be born during that period. Any such children will be born British citizens.

A de facto or proxy abduction can occur where the foreign spouse is taken to her home country to visit relatives or on holiday. Her passport, which includes the visa allowing re-entry to the UK, is taken away and she is left behind when the rest of the family return to the UK.

In the case of Re S (A Child) (Guidance in cases of stranded spouses) [2010] EWHC 1669 (Fam) Mrs Justice Hogg  described the practice as

…a chillingly callous way of behaving towards a young and new mother and towards a very young newborn baby… It is something which is abhorrent and unfeeling towards a child and mother. It is selfish and cruel by those who do it.

A cross jurisdictional international family law case is usually going to be out of the question in many cases. Many countries are not signatories to the Hague Convention, which facilitates swift resolution of conventional child abduction cases. The stranded spouse will often not have the resources to access the home legal system in any event. Anyway, the proper jurisdiction for dealing with the residence of a British child born in and habitually resident in the UK is, of course, the UK.

So the stranded spouse must find a means by which she can return to the UK to fight her corner and see her children. First of all, a new national passport will need to be obtained from the home country. This takes precious time and money. Next, the stranded spouse will need to obtain a replacement visa to place in that passport.

With no ready access to a British High Commission or embassy official, who are now barricaded behind impenetrable ‘commercial partners’ in most countries, this is going to be inherently difficult. Worse, though, the British immigration officials will realise that the relationship that formed the basis of the visa has permanently broken down. There is arguably no basis for the visa to be reissued because the immigration rules are no longer satisfied. The application will be refused. Even an application outside the rules or on the basis of a visit to the UK will also sometimes be refused by dogmatic officials who can see no further than the strict terms of the rules.

In Re S this is exactly what happened and Hogg J recorded her plea to immigration officials and to Ministers to make proper future arrangements for the return to the UK of a mother caught in this situation. She also issued very useful guidance on how judges and lawyers might handle such cases in future.

An affected child should be made a Ward of Court (see old post on wardship) and the case handled in the Family Division of the High Court. Powerful Tipstaff Orders should be made to assist in locating and returning the child. The immigration authorities should be engaged, as far as possible, and expert immigration advice should be considered. An order should be considered requiring the foreign parent to attend in person in the UK and the immigration authorities invited to assist.

Even then, obdurate immigration officials can and do still refuse to facilitate return.

There are further remedies that can be pursued. An mandatory order for return can be sought as interim relief in a judicial review claim or potentially as part of the family proceedings. If a visa application gets as far as being formally refused it can form the basis of the judicial review. The human rights of the stranded spouse and the best interests of the children can be pleaded.

The UK-based parent can be summoned to court and sanctions pursued, including contempt of court. Nevertheless, the UK-based parent cannot issue a new passport or visa. An immigration official must do that.

In two cases brought to my attention this week, though, the visa officers simply refuse to budge despite strongly worded encouragement from High Court judges in line with Re S.

The separation of these children from their mothers goes on and on while the courts prod and cajole indifferent officials. The worst case scenario is that the children will never know their mothers. And the problem is likely to become more common now that the probationary period has been extended from two years to five years.