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Child Protection 

Child Protection
Chapter:
Child Protection
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806387.003.0013
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Subscriber: null; date: 15 August 2018

13.1 Introduction

This section of the Workbook concentrates on offences associated with child abduction. Offences relating to child abduction are covered in just over two pages of your Investigators’ Manual. Nevertheless, these offences can easily be made the subject of questions within your examination. As such you will require an understanding of who can commit these offences and how, along with their related defences.

13.2 Aim

The aim of this section is to help you understand the law relating to child abduction.

13.3 Objectives

At the end of this section you should be able to:

  1. 1. Outline the offence of child abduction (contrary to s. 1 of the Child Abduction Act 1984).

  2. 2. Outline the offence of child abduction (contrary to s. 2 of the Child Abduction Act 1984).

  3. 3. Identify when a defence to an offence under ss. 1 and 2 of the Child Abduction Act 1984 may be available.

  4. 4. Apply your knowledge to multiple-choice questions.

13.4 Child Abduction (s. 1: Person Connected with the Child)

13.4.1 Exercise—Five Points to Prove

There are five points to prove in relation to this offence. You have been given the first but what are the rest? (Do not worry about the order of the points to prove.)

13.4.2 ‘Connected’ with a Child

It is important to note that the only person capable of committing this offence is someone ‘connected’ with the child. Section 1(2) of the Act details those persons who fall into this category. Rather than attempt to remember this section think about the potential offender and ask, ‘Does this person have a biological (e.g. a parent) or legal (e.g. a guardian) connection with the child?’ If the answer is ‘no’ then they are not ‘connected’ to the child and cannot commit this offence.

13.4.3 Age

A common requirement of the offences under ss. 1 and 2 of the Act is that the child victim of the offences must be under 16.

13.4.4 Exercise—The United Kingdom

MILTON and his 12-year-old daughter live in London. MILTON decides to take his daughter on a two-week holiday without the appropriate consent. Consider the following statements and decide whether they are true or false.

  1. 1. If MILTON took his daughter to Wales, the offence would be complete.

    True / False

  2. 2. If MILTON took his daughter to Scotland, the offence would be complete.

    True / False

  3. 3. If MILTON took his daughter to Northern Ireland, he would not commit the offence.

    True / False

  4. 4. If MILTON took his daughter to Eire (Southern Ireland), the offence would be complete.

    True / False

13.4.5 Appropriate Consent

Appropriate consent is covered by s. 1(3) of the Act. Ask the question, ‘Who has a biological or legal connection with the child?’ and compile a list of answers; think of this as a school register. Whoever appears on that register must have a ‘tick’ next to their name in a column entitled ‘consent given’. If the ‘consent given’ column is not full then an offence has been committed as the consent of each and every one in that column is required.

See Investigators’ Manual, para. 2.10.2.1

13.4.6 Exercise—Defences to an Offence Under s. 1 of the Child Abduction Act 1984

Consider the following statements and decide whether the named person would have a defence to a charge under s. 1 of the Act. Give a short explanation for your answer.

  1. 1. SMITH is a person named in a child arrangements order as a person with whom his 8-year-old child Rebecca is to live. He takes Rebecca to Germany for six weeks without the consent of Rebecca’s mother.

    Defence available?

    Why / Why not?

    ____________________________________________________________________________________

  2. 2. EMMS takes his 6-year-old child to France for two weeks without the consent of the child’s mother. EMMS mistakenly believes the child’s mother has consented to the trip.

    Defence available?

    Why / Why not?

    ____________________________________________________________________________________

  3. 3. PRATT takes his 2-year-old child to Spain for a week. This is against the wishes of the child’s mother who has unreasonably refused to consent to the trip.

    Defence available?

    Why / Why not?

    ____________________________________________________________________________________

13.5 Child Abduction (s. 2: Person Not Connected with the Child)

13.5.1 Exercise—Six Points to Prove

There are six points to prove in relation to this offence. You have been given the first but what are the rest? (Do not worry about the order of the points to prove.)

13.5.2 Exercise—Developing the Offence Under s. 2

Read the following circumstances and then answer the following questions. Give reasons for your answers where appropriate.

OAKES (a 30-year-old male) enters a child’s play area in a park where he sees VATER (an 8-year-old child) playing on some swings. VATER’s mother is talking to some friends nearby. OAKES approaches VATER and asks VATER to come and play on a roundabout 20 feet away. VATER consents and walks with OAKES towards the roundabout. VATER’s mother sees OAKES walking with her child and asks him what he is doing. OAKES tells the mother to shut up or he will hit her. The mother fears for herself and her child and does nothing. OAKES has no criminal intentions with regard to VATER and talks with her for a few minutes before leaving the play area.

  1. 1. OAKES is not ‘connected’ to VATER.

    Why?

    ____________________________________________________________________________________

  2. 2. Does the fact that VATER’s mother is nearby make any difference?

    Why / Why not?

    ____________________________________________________________________________________

  3. 3. VATER consented to walk to the roundabout with OAKES. Does this have any effect when considering an offence under s. 2?

    Why / Why not?

    ____________________________________________________________________________________

  4. 4. Does the fact that OAKES has no ulterior criminal intention with regard to VATER make any difference?

    Why / Why not?

    ____________________________________________________________________________________

  5. 5. OAKES has not used any form of physical violence or a fraud to get VATER to accompany him to the roundabout. Does this prevent him committing an offence under s. 2?

    Why / Why not?

    ____________________________________________________________________________________

13.5.3 Removal of Control/Keep out of Control

When you consider this part of the offence you should bear in mind the Court of Appeal’s comments in R v Leather [1994] Cr App R 179.

  • The court held that the concept of ‘control’ does not have any ‘spatial’ element, and it followed that the phrase ‘so as to remove from the lawful control’ did not impose a geographical element to the offence (in other words, the child does not have to be physically moved by the actions of the defendant for the offence to be committed).

  • The test to be applied is whether the child has been deflected by the action of the accused from doing that which he/she would have been doing with the consent of the person having lawful control of the child (in other words, the authority of the person in ‘lawful control’ has been substituted by that of the offender and the child is now under his/her control).

See Investigators’ Manual, para. 2.10.2.3

13.5.4 Exercise—Defences to an Offence Under s. 2 of the Child Abduction Act 1984

There are three defences to an offence under s. 2 of the Act. What are they? (You have been provided with the first part of this section.)

It shall be a defence for the defendant to prove (where the father and the mother of the child in question were not married to each other at the time of his birth)

  1. 1. __________________________________________________________________________________

  2. 2. __________________________________________________________________________________

    or

  3. 3. __________________________________________________________________________________

13.6 Conclusion

You will have realised that these offences are not straightforward and demand concentration to understand, particularly when you have to consider the various defences available. This section should have assisted you in that task.

13.7 Recall Questions

Try and answer the following questions.

  • What is the relevant age of a child for offences under ss. 1 and 2 of the Child Abduction Act 1984?

  • What countries make up the United Kingdom?

  • You are explaining ‘appropriate consent’ to a colleague; what will you say?

  • When is the time period of one month relevant?

  • What are the defences to a charge under s. 1 of the Child Abduction Act 1984?

  • Who can commit an offence under s. 2 of the Child Abduction Act 1984?

  • What are the defences to a charge under s. 2 of the Child Abduction Act 1984?

  • What does the phrase ‘so as to remove from lawful control’ actually mean?

13.8 Multiple-Choice Questions

Answers to these questions can be found in the ‘Answers Section’ at the end of the book. All explanations also include a reference back to the Investigators’ Manual 2018.

1. COLETO has been divorced from his wife for several years. He is the father of three children by the relationship with his wife: Anthony (aged 16 years), Phillippa (aged 14 years) and Mark (aged 12 years). His wife has lawful custody of all three children. COLETO takes all three children on a trip to Italy for six weeks, even though he knows his wife does not consent to the trip.

Considering the offence under s. 1 of the Child Abduction Act 1984 only, which of the following statements is correct?

  1. A COLETO commits an offence with regard to all three children.

  2. B COLETO commits an offence with regard to Phillippa and Mark.

  3. C COLETO commits an offence with regard to Mark only.

  4. D COLETO does not commit an offence because he is the father of the children.

Answer _____________________________

2. LEE (who is 12 years old) is playing in a park with a group of friends (his parents are not present in the park). CURTIS (who is 18 years old) approaches LEE and asks him to help him search for his lost wallet (this is a lie as CURTIS’s real motive is to sexually assault LEE). LEE agrees and looks behind several bushes in another part of the park along with CURTIS. LEE becomes bored and tells CURTIS he is going back to continue playing with his friends. CURTIS tries to persuade LEE to stay with him, but LEE pays no attention and walks off.

Has CURTIS committed an offence of child abduction under s. 2 of the Child Abduction Act 1984 (person not connected with a child)?

  1. A Yes, because CURTIS has removed LEE from his parents’ lawful control.

  2. B No, CURTIS has not used force or tried to physically restrain LEE.

  3. C Yes, but only because CURTIS has an ulterior motive in mind.

  4. D No, because LEE consented to accompany CURTIS.

Answer _____________________________

3. Fifteen months ago PELL had a sexual relationship with DAY but then the two split up. Some time later, PELL discovers that DAY has a six-month-old daughter and, because PELL knows that DAY is a loner and very rarely has any relationships, he believes that the child is his. PELL is mistaken in this belief. Although PELL asks, DAY repeatedly refuses to let PELL near her child. One afternoon when DAY is pushing the child in a pram, PELL approaches mother and child and grabs hold of the child. PELL holds on to the child for several minutes before giving her back to DAY.

Considering the offence under s. 2 of the Child Abduction Act 1984 only, which of the following statements is correct?

  1. A In these circumstances PELL commits the offence, as he is not the father of the child.

  2. B PELL commits an offence but would have a defence if he believes, on reasonable grounds, that he is the father of the child.

  3. C The only defence is that at the time of the offence the defendant believes the child has attained the age of 16.

  4. D PELL does not commit the offence because he did not remove the child from DAY’s lawful control.

Answer _____________________________

Flowchart for ss 1 and 2 of the Child Abduction Act 1984

Flowchart for ss 1 and 2 of the Child Abduction Act 1984