Family and Children
In the case of R (on the application of Nicolaou) v Redbridge Magistrate’s Court , a father won his right for a judicial review after failing to return his son following a contact visit to Cyprus.
Under section 1 of the Child Abduction Act 1984, ‘a person connected with a child under the age of 16 commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent’.
In this case, the child R was sent to Cyprus to have agreed contact with his father. At the end of the contact period the father failed to return the child to the UK. Under Hague Convention proceedings, the family court in Cyprus found that the child had been unlawfully retained and ordered his return. This order was also upheld by the Supreme Court of Cyprus. The child was then also made a ward of the English High Court and the court ordered the return of the child. When the father still failed to return the child an arrest warrant was issued under the Child Abduction Act 1984.
The father argued that he removed his son from the UK with the appropriate consent and his failure to return him was not covered by this same law. The Crown Prosecution Service argued that ‘takes out’ in section 1 of the Act could be construed as a continuing activity and that taking out became unlawful if the child remained out of the jurisdiction without the appropriate consent.
The father argued that ‘takes out’ referred to the act of removal and not to the continuing activity and that an offence only occurred if there was no consent at the point when the child was removed.
The father’s application for a judicial review was allowed. It was artificial and unnatural to construe ‘takes or sends out’ as a continuing activity.