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Transnational Child Abduction Matters that the Hague Convention does not Cover

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Transnational Child Abduction Matters that the Hague Convention does not Cover

Family lawyers have significant experience providing clients with counsel regarding the 'Hague Convention' (The Hague Convention on Civil Aspects of International Child Abduction). However, in recent years, our clientele has become more frequently concerned with the ramifications of children being abducted from non-signatory countries to Scotland and returning to Scotland.

Occasionally, these cases may entail accusations of domestic violence, the participation of governmental entities like the Home Office, and inquiries conducted by social work experts (occasionally spanning multiple nations).

The following practical concerns may arise in cases involving abduction:

Locating The Children

One of the most difficult obstacles may be determining the precise location of the child or children who were transported to Scotland or are presumed to be there. When required, court proceedings can be initiated without the children's addresses. The court may be requested to issue orders under section 33 of the Family Law Act 1986 requiring public entities or individuals (e.g., schools, the NHS, police, and social work departments) to provide the court with information regarding the whereabouts of the children. If concerns exist regarding the disclosure of the address to a non-resident parent, the court may be furnished with this information in confidence, and solicitors involved may enter into agreements not to divulge the information to their clients.

Preventing Future Child Abduction Cases

After the children arrive in Scotland, preventing their expulsion to a third country becomes the foremost concern. We shall request the abducting parent to surrender their passports to the court, while we await the outcome of the court proceedings. In addition, we may petition the court for interim interdicts, which are orders prohibiting the parent from taking their children outside the court's jurisdiction until the case is resolved.

The police have the authority to implement All Ports Warnings to prevent parents from attempting to leave the United Kingdom with their children by crossing an international border. Such actions would be prevented by border personnel or the police, pending further court orders. Typically, the issuance of an interim interdict prohibiting the removal of a minor from Scotland is adequate for permitting the implementation of an All Ports Warning by Police Scotland.

Scotland's Courts Proceedings

In contrast to cases involving the Hague Convention, those involving non-Hague countries entangle in abduction proceedings before the Court of Session in Edinburgh, Scotland, where domestic child law dictates the appropriate course of action. The court may be requested to issue directives regarding the repatriation of the children to the foreign country in question, as well as the regulation of their residence and contact. Frequently, welfare matters are litigated in Scotland, as opposed to a jurisdictional dispute concerning whether the children ought to be returned to their country of origin where welfare decisions are to be made.

International Legal Counsel Advice

In family law cases involving international jurisdiction, it is customary to seek legal counsel from the country of origin on matters including the enforceability of orders issued by Scottish courts, the repercussions of order violations, and preventative measures that can be implemented to allay the abducting parent's concerns if they and/or their children return. This may also entail procuring evidence for the Scottish court regarding the functioning of legal systems that are not conventional to us, including Sharia law.

A Barrier of Language

International family law often requires the resolution of linguistic obstacles. We may be asked to escalate cases in Scotland on behalf of clients who have no command of the English language. This can complicate the process of following even basic instructions. Intriguing nuances may also emerge in the context of working with foreign languages. In two instances involving interpretation and translation from Arabic to English, for instance, one party raised concerns regarding the accuracy of the translation due to the translator communicating with the client in a dialect of Arabic that differed from their own. In cases about children, and frequently the conduct of parents, misunderstanding of the entire conversation, document, or piece of evidence can have severe repercussions; therefore, it is critical to obtain your accurate translations, if necessary, rather than rely on the one produced by the attorney representing the opposing parent.

Cultural Concerns

Litigation involving participants from various global locations may involve not only the convergence of distinct legal systems and languages but also the convergence of unique life experiences. This may entail making certain provisions and scheduling intervals to allow clients and observers to engage, as well as guaranteeing the presence of the Court of Session's Qu'ran copy during client oath ceremonies.

If you are in a position where you require guidance due to suspicions that your child has been unlawfully transported to Scotland, we acknowledge that this is a time of great distress and anxiety for you. Our seasoned and compassionate family law team maintains extensive connections with preeminent family solicitors across the globe. Please do not hesitate to contact us if we can be of any additional assistance.

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