The government’s proposal to amend the Child Abduction Act 1984 (CAA) by creating a new offence for “detaining” a child abroad without the appropriate consent has been framed as a necessary step to protect left-behind parents. In this article, Sophie Arrowsmith examines the proposal and considers whether, if implemented, it might worsen the problems it is designed to overcome.

Clause 76 of the Crime and Policing Bill proposes that a new offence be added to Section 1 CAA, which could see parents imprisoned for a maximum of seven years for “wrongful retention” of a child abroad.

The government has said the amendment closes a “gap” in procedure and is a simple correction to prevent one parent from taking a child overseas and refusing to return. However, beneath this neat narrative lies a more troubling reality. The amendment risks sweeping up the wrong people: parents, quite often mothers, who flee the country to protect themselves and their children from domestic abuse. In focusing on stricter punishments, the government may end up criminalising escape.

At first blush, criminalisation appears to offer clarity to those abusing the process. If taking a child abroad without consent is already an offence, why not include wrongful retention? The difficulty with this framing is that it fundamentally misunderstands the nature of many international family disputes. Not every retention is a calculated attempt to sever ties with the other parent. Sometimes it is the desperate act of someone who believes the system at home cannot protect them.

Silence on domestic abuse

The most alarming aspect of the proposal is its silence on domestic abuse. The legislation includes no automatic provisions, no statutory defences and no exemptions for those in this position. It assumes a level playing field between parents when, in reality, family separation is often the point at which abuse escalates. This shows a lack of inclusivity when compared with the progress made in other areas of family law procedure, which seek to give victims back their voice.

Criminalising wrongful retention does not guarantee a child’s return. It may complicate diplomatic negotiations, harden positions or deter parents from cooperating, especially in countries already hostile to extradition. Our primary international mechanism for resolving these disputes, the Hague Convention, could become harder to operate if one parent faces criminal consequences for engaging with it.

Time to modernise our approach to international child disputes

There is a genuine need to modernise our approach to international child disputes. It is a wonder why the government does not follow the approach recently pioneered in the reform to the practice directions, notably the implementation of Practice Direction 12J, which sets out how the family court must deal with child arrangement cases where domestic abuse is alleged or proven.

Left-behind parents often face unbearable delays and legal obstacles. Real reform should strengthen family court processes, improve international coordination and address the shortages in specialist legal support, rather than rely on criminal sanctions.

Predictably, this amendment feels like a political shortcut. It offers the appearance of decisive action while potentially worsening the very problems it claims to address. No one disputes that child abduction and wrongful retention cause immense harm. But the medicine cannot be worse than the disease. A law that treats protective parents as offenders is not justice. A law that ignores the realities of domestic abuse is not protection and is not progress.

Conclusion

This proposal, as drafted, risks punishing the vulnerable, complicating international cases and undermining the careful balance that family courts have fought hard to encourage. The protection of children demands precision and fluidity, not blunt instruments.

Head of the Children team, Alex Verdan KC comments:

“From the standpoint of child welfare, there is little distinction between a child being abducted, meaning wrongfully removed, and a child being wrongfully retained. Both situations can have significant and harmful effects on the child, regardless of the specific circumstances underlying the removal or retention.

“The proposed amendment seeks to resolve an inconsistency within the current criminal law. By doing so, it clarifies that both the wrongful removal and the wrongful retention of a child are equally unacceptable under the law.

“This amendment sends a clear and unequivocal message: the removal or retention of a child, without either the necessary consent or a court order, will not be tolerated. It reinforces the protection of children and ensures their welfare remains a priority within the legal framework.”