SNATCHED CHILDREN

HC Deb 23 March 1978 vol 946 cc1839-50

4.0 p.m.

Mr. John Stanley (Tonbridge and Malling)

I am glad to have the opportunity in the final debate before the recess to raise the subject of the problem of tracing snatched children. I acknowledge the very important help that I have had from my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) in understanding the legal implications of the present situation. I am referring not to a child who is snatched by a passer-by but to the more complex and problematical matter of a child who is snatched by one parent from the other. The most difficult aspect is when the snatch takes place before divorce proceedings are finalised and there is no clear determination of arrangements for custody or access.

I refer to a particularly distressing and heart-rending case that has occurred in my constituency—that of four-year old Mathew Allingham. Last summer his parents were in the process of getting a divorce. The divorce negotiations were proceeding perfectly amicably. Custody had been agreed in principle—Mathew was to go to Mrs. Allingham who would have custody, and access rights for Mr. Allingham had been agreed. Maintenance had also been agreed, as had the division of the proceeds of the matrimonial home.

In June last year before the divorce arrangements had been completely finalised, Mr. Allingham requested to be allowed to take Mathew away for a week's holiday. Mrs. Allingham agreed, and there were no grounds whatever up to that point for suspicion on her part. She went away at the same time and when she came back she found a letter from her husband which read: I have taken Mathew on an extended holiday. Do not worry. You know that I will look after him. That was nine months ago. Despite the most exhaustive inquiries by the Kent police and others, and most rigorous, sustained and valiant efforts by Mrs. Allingham's solicitor, Mr. Richard Dresner, whose contribution I cannot praise too highly, Mathew still has not been found. Both he and his father have disappeared without trace.

This case has highlighted three major deficiencies in the arrangements for protecting what we all consider to be the fundamental rights of a child to preserve access to each of his or her parents. The first deficiency is the absence of mutual enforcement provisions, between this country and others, on wardship and custody orders. This is particularly relevant in this case. Mathew was made an interim ward of court almost immediately after the snatch occurred, but the wardship order was approved by an English court and was therefore only legally valid in England and Wales. It had no legal validity in Scotland, Northern Ireland, the Isle of Man or the Channel Islands, let alone any Commonwealth countries, the United States or the EEC countries.

The present situation is that if one parent snatches a child away from the other parent and is able to get that child out of England or Wales, he or she is reasonably certain of avoiding the English wardship order. We already have mutual enforcement provisions on maintenance orders between this country and others. It is high time that we extended that principle to wardship and custody orders.

The absence of such arrangements at present are relevant to this sad and depressing case because Mr. Allingham has a brother in Canada and it may well be that he has taken Mathew there. The absence of any mutual enforcement provisions in regard to Mathew's wardship order means that if he is traced and found in Canada it will be necessary for Mrs. Allingham to institute legal proceedings in a Canadian court to secure the return of her son to this country.

I come to the second major deficiency in the system. I refer to the absence of any form of legal aid in legal proceedings overseas. I said that if Mathew were found overseas, perhaps in Canada, it would in theory be open to Mrs. Allingham to institute proceedings in a Canadian court for his return to the United Kingdom. But that is only a theoretical option open to her. She is in receipt of legal aid, but because under the rules such aid is not available to pursue cases overseas, she would have no means financially by which she could initiate an action in a Canadian court for the recovery of her son.

Mrs. Allingham at present has the cards stacked against her. They are certainly stacked against Mathew's chances of being reunited with his mother. Mrs. Ailingham's son has been snatched and he might successfully be traced, possibly later this year or at some time in the future, in Canada. But if the present situation endures, Mrs. Allingham will find that her English wardship order has no legal force in Canada.

Mrs. Allingham will find that the fact that she is unable to obtain legal aid for an action overseas will leave her with no means of instituting proceedings in a Canadian court. She is left with one option—a highly disagreeable and distasteful one and one which is emotionally traumatic for her, and even more so for the child. The option lies in trying to arrange, by stealth and subterfuge, a snatch-back or counter-snatch. Because of the inadequacy of the present arrangements, Mrs. Allingham's solicitor has advised her that that would be the course to be followed if Mathew is identified overseas.

I suggest that in the latter half of the twentieth century in a civilised country it is morally indefensible that we should put a mother or father in a position whereby, to secure the recovery of a child, he or she is unable to use the procedures in court but is forced to engage in a snatch-back.

I suggest that, although I fully recognise that there are major problems to extend legal aid generally to matters overseas, in these circumstances the human considerations are so extenuated and fundamental that a special fund should be created to enable those parents who wish to have financial help to carry out pro- ceedings in courts overseas for the recovery of their children who are subject to wardship or custody arrangements in the United Kingdom.

Finally, there is a third deficiency, and that is the question of the tracing of snatched children. As I have discovered when examining all the ramifications of this case, it is surprisingly easy in Britain to disappear. One can change one's name very easily. We have no system of identity cards, and Government Departments strictly enforce the principle of the confidentiality of personal information that is given to them. I in no way wish to abandon any of those practices. I believe that it is right and reasonable in a free society that if people want to embark on a new life, for whatever reason, they should be able, if they wish, to change their names.

I certainly oppose the introduction of an identity card system and I attach the greatest importance to maintaining the principle of the privacy of personal information given to Government Departments. However, a case such as the one to which I am referring means that we need again to consider whether there are ways in which we can do more to protect the rights of snatched children and retain access for the parents from whom they have been snatched.

I should like the Minister to look at three courses of action that might help the tracing process in this country. Will she have consultations within her Department to satisfy herself that the powers available to the police are adequate and give them all reasonable prospects of identifying and tracing snatched children? I fully appreciate that the Allingham case is not a criminal matter but a civil matter and that therefore assistance given by police forces is on an ex gratia basis rather than in fulfilment of their legal obligations.

Will the Minister consult the Secretary of State for Education and Science to see whether it might be possible to do more through local education authorities to establish whether a snatched child is continuing to go to school in another area, perhaps under a different name? If Mathew is still in this country, he will shortly be of the age to start school, and this is another avenue which should be explored.

I should also be grateful if the Minister would consult the Secretary of State for Social Services, because the Department of Health and Social Security has access to the names and addresses of people receiving benefits and paying national insurance contributions. I understand that the Department regards the privacy of information given to it as a fundamentally important principle, but that it makes ex-exceptions when children have been snatched. I was glad to receive a letter from the Under-Secretary at the Department on 25th November. He said: I can assure you, however, that it is the Department's policy to help parents, guardians, courts or the police when they ask for the address of a missing child. Local social security offices have instructions that for this purpose they may make an exception to the normal rules of confidentiality and may provide the address of a child missing from home to the police or to a person known to be the child's parent or guardian. However, although that may be the official ministerial view, the exceptions on confidentiality may not have percolated through to local offices of the Department. Mrs. Allingham received a letter on 16th March from the North Fylde office of the Department. She had been making inquiries about a possible new address for her husband in this country. Mr. G. B. Duffy replied to her: I must however, tell you that if then a later address was held in the Departments records we might not be able to let you have the address, such information being regarded by the Department as confidential. However while your son Mathew is the subject of wardship proceedings we would inform Tunbridge Wells County Court of the address at their request. I am unhappy about the phrase "at their request". The onus should be on the Department to make details available to the court as soon as it has any new information about the whereabouts of Mr. Allingham. The onus should not be on the court to make continuing applications to the Department. I should be grateful if the Minister would look into that.

The case of Mathew Allingham highlights some glaring deficiencies in our arrangements for tracing snatched children. There are deficiencies certainly if a child is snatched and taken overseas, and possibly there are some deficiencies, too, in the tracing process in Britain. I believe that we owe it to every child to protect its right of access to its parents. I hope that the Government will accept that we shall be failing in our responsibility towards children who are snatched in future if we leave the present situation unchanged.

4.16 p.m.

The Under-Secretary of State for the Home Department (Dr. Shirley Summer-skill)

The hon. Member for Tonbridge and Mailing (Mr. Stanley) has raised a most distressing case. I am sure that the whole House will have great sympathy for Mrs. Allingham in the position in which she now finds herself. I hope that in my reply I shall be able to make some statement on the processes for the tracing of children in this country. I shall then move on to state the nature of the processes for tracing children abroad.

Where there is a court order such resources as are available from Government sources are made available for the tracing of children. As the hon. Gentleman said, these sources include records of the Department of Health and Social Security, and on occasions those of the Passport Office and the Ministry of Defence. The procedure is described in working paper No. 68 on custody of children (jurisdiction and enforcement) within the United Kingdom. That was completed for publication on 15th June 1976.

Since 1973 the police have been willing to give assistance in tracing a child where the enforcement of a custody or wardship order is in question. As the hon. Gentleman said, that was done in the case of Mathew Allingham. Where there is no court order, it is a discretionary for the Department of Health and Social Security and the police to assist in tracing children. However, I think that the hon. Gentleman's surmise is right, that where it concerns a disappeared child, or a child with parent, it is almost certain that that discretion will be used in favour of giving help.

There are practical difficulties if a child is missing in the true sense—for example, if a child has disappeared from home without any apparent explanation. In those circumstances, the police will attempt to trace the child. However, it is rather different if the child is with one parent and the other parent is seeking to trace him or her. In those circumstances, the question sometimes arises of the motive of the parent concerned. That is why discretion is left with Government Departments and the police. In practice, I am sure that they would do everything possible to help.

I shall ask my right hon. Friend the Secretary of State for the Home Department to consider whether there should be wider powers of tracing given to the police, as suggested by the hon. Gentleman. If a person who is claiming the custody of a child wishes to seek a remedy, it is open to the parents to initiate custody or wardship proceedings if they have not already done so. However, there are practical problems.

As the hon. Gentleman appreciates, it is surprisingly easy for a person to disappear in this country. Contrary to what many believe, there is no central source at which information about people's whereabouts is co-ordinated. The Department of Health and Social Security is probably the best source, but, as Mrs. Allingham found in relation to her husband, its information is sometimes out of date. That happens not infrequently.

It should not be thought that greater disclosure would always help in tracing. Only if we were to accept a much greater restriction of the freedom of individuals than we have hitherto been prepared to accept in peacetime would it be possible to improve tracing. It is difficult to improve tracing.

I am interested in the hon. Gentleman's suggestions, which I shall convey to my hon. Friends, about making inquiries of education authorities. I shall ask my right hon. Friend the Secretary of State for Social Services to investigate any possible deficiencies in the local offices and to ensure that guidance is getting through to them.

The answer to the question about an order not being enforceable throughout the United Kingdom is that an English order is not automatically enforceable in Scotland and Northern Ireland, and vice versa. However, this is not so great a problem as might appear at first sight, because it is not so difficult to mount proceedings in Scotland as in, say, Canada or France. Legal aid is available for such proceedings, and the judgment in the other part of the United Kingdom would obviously have great persuasive force. The Law Commission's working paper No. 68 recommends a system of registration which could resolve this problem. Legislation would probably be a matter for the Lord Chancellor and the Scottish and Northern Ireland Offices. However, as the working paper is only consultative at the moment, action will have to wait until the Law Commission has considered the matter in the light of the comments that are received.

The international enforcement of custody orders is an important and difficult question which has been under examination for some years by the Law Commissions of England and Scotland, the Home Office, the Lord Chancellor's Department and the Foreign and Commonwealth Office. There have been and still are, extensive international discussions. I feel that quick solutions are not likely to be forthcoming, but I assure the hon. Gentleman that the Government agree with him that this is an urgent problem and that it is important to find a solution quickly. Because of the increase in international travel this type of problem is bound to increase in the future.

The trouble is that it might be necessary to make different agreements with different groups of countries because of the different legal situations pertaining throughout the world. At present we are not a party to any international agreement relating to the custody of children, and it therefore follows that an English, Scottish or Northern Ireland court order as to custody is of no great effect in other countries; nor is an order made in another country of any effect here except in so far as it might be persuasive in leading a court here to make a similar order. This is and always has been the position. Although it might be said that this has always caused some difficulties, I have no doubt that the difficulties have increased substantially in recent years for the reason that I have just given.

It might well be asked why there is as yet no international agreement on these matters. Although the evil is universally recognised, and other countries suffer from this type of problem, it is by no means easy to find a remedy which will be acceptable to all parties.

The matters which have to be considered before one can get international agreement must be as follows. First, we think it is necessary that the countries reaching the agreement should accept the fundamental principle that the overriding consideration in the taking of decisions as to the legal custody of a child is the child's welfare, and that the decision should not be taken on some other rather arbitrary grounds such as whether one parent or the other has committed adultery, or does not happen to hold the religious belief which is held by the majority of the citizens of the State in which the decision on custody is taken, or some other rigid rule of that kind. Although such rules have existed in many countries they are progressively, fortunately, ceasing to be an obstacle.

Secondly, there has to be some means of deciding who is entitled to the legal custody of the child. In this country, and now in most other countries in the Western world, the rights of the mother and father are equal. Neither of them is entitled to legal custody of the child to the exclusion of the other until a court order is made. Before there can be any possibility of enforcing by law the handing of the child from one to the other, there must be a court order of some kind.

Thirdly, where there is a contest between the adults concerned but they are in different jurisdictions, some means must be found of resolving which court in which jurisdiction should decide the dispute on its merits. Generally speaking, this country, many Commonwealth countries and the USA, and some others, favour habitual residence or some variation of it, but many other countries prefer nationality as the appropriate test.

Although there is no formal agreement between the United Kingdom and any other country on the recognition of custody orders, it does not follow that a fresh decision on the merits has to he taken whenever a child is brought here from overseas or a child is taken overseas from here, because the court may well decide that it is in the child's interests for the overseas decision to be recognised, or, alternatively, that the child should be returned to his country of habitual residence for the decision to be taken there. There was a case in which the High Court decided that a dispute relating to two children should be decided by a court in West Germany. But it would obviously be more satisfactory if there were formal agreements, which is what the hon. Gentleman seeks.

The United Kingdom is participating in some international negotiations. The most advanced are being conducted by a committee of experts of the Council of Europe, which, after considerable discussion, produced a draft covention during 1976. This draft convention has not commanded universal support amongst all member States, and it is now in course of being revised. If it is eventually accepted by all member States, it will cover most of Western Europe. Exploration has also begun in the context of the Hague conference on private international law.

Our first efforts will be made on reaching multilateral agreements, but failing that we shall have to try for bilateral agreements. Exploration has already begun within the Commonwealth. The subject was discussed at the Commonwealth Law Ministers conference in Winnipeg last August. We understand that this whole matter is to be followed up by the Commonwealth secretariat.

The hon. Member mentioned legal aid. It would require new legislation to set up a fund to provide legal aid in proceedings overseas, and that would be the responsibility of the Lord Chancellor's office. There are no proposals for such a fund. At the moment the better course would be to secure international agreement on legal aid being provided under and according to the rules applying in a country where the proceedings are brought. Discussions are taking place in the Council of Europe on this process in conjunction with the other discussions that I have mentioned.

Mr. Stanley

I agree that if we could get international agreement on the availability of legal aid in these cases that would be all well and good. Will the Minister also consider, however, that in the absence of such an agreement, and given that child-snatching cases continue to arise in which parents are prevented from instituting legal proceedings overseas, she should give the most serious and urgent consideration to the taking of unilateral action by the United Kingdom to help such parents to institute proceedings abroad for the recovery of their children?

Dr. Summerskill

I shall convey that view to my right hon. Friend and ensure that the Lord Chancellor's Department is aware of it.

We should not forget, in discussing the prospects of international agreement, that such agreements cannot work unless, in the American phrase, the courts of the jurisdictions concerned give full faith and credit to each others' decisions. Every court feels instinctively that its own decisions should be recognised elsewhere but often, regrettably, it is a different matter when the question is whether a foreign court's decision requiring the return of a child to a person in another country should be recognised and enforced. In every country there is a tendency to think that it must be within the child's best interest to be brought up there rather than elsewhere, but I believe that this feeling is being overcome and that progress will be made.

There is genuine hope of a satisfactory outcome to the discussions that I have mentioned. It would he misleading for me to suggest that an agreement involving different countries which have different legal procedures can be reached and implemented quickly. However, I assure the hon. Member and the House that considerable work is proceeding. Everything that the hon. Member has said concerning the particular case he mentioned will be referred to the relevant Ministers in this country, and every effort will be made to meet the points that he has raised.

Question put and agreed to.

Adjourned accordingly at half-past Four o'clock till Monday 3rd April, pursuant to the resolution of the House of 20th March.