Child Abduction- Person Not Connected with Child Flashcards
Q: What is the s2 offence?
S2 Child Abduction Act 1984.
S2(1) A person commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of 16—
(a) so as to remove him from the lawful control of any person having lawful control of the child: or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.
Q: Summary of the offence
This is the taking or detaining of a child under 16 from anyone entitled to their lawful control, without any justification. You need to prove that the child was deflected from what the child would otherwise have been doing with the consent of those having lawful control over him, to some activity induced by D.
Eg: enticing child to stop playing with friends and come over to help look for a lost dog.
Q: What type of offence is s1?
Triable either way offence.
Carries a maximum sentence of 7 years imprisonment on indictment.
Q: Does this offence require consent of the DPP to prosecute?
No!
Q: Does the child need to be taken out of the UK?
Unlike the s1 offence, it need not be out of the UK.
Q: What does ‘detaining’ mean for the purposes of this section?
Does not require any physical restraint. Inducing a child to remain with D or another person still amounts to an offence.
Q: Does taking require any form physical contact?
No! Taking a child away for a matter of moments will be sufficient.
Q: What does ‘remove’ mean?
The word ‘remove’ for the purpose of s. 2(1)(a) effectively means a substitution of authority by a defendant for that of the person lawfully having it and physical removal from a particular place is not required.
Section 2(1)(a) requires the child there and then to be in the lawful control of someone entitled to it when he/she is taken or detained, whereas s. 2(1)(b) requires only that the child be kept out of the lawful control of someone entitled to it when taken or detained.
Q: Does the consent of the victim matter?
The consent of the victim is irrelevant. Offence will still be made out if V consents.
Q: Who has lawful control of a child?
Depends on circumstances.
Parents have overriding lawful control of their children at all times, whether or not the child is physically with them. In other situations, other people may have lawful control of the child too eg: schoolteacher during school times, social worker, child minder looking after child…
The person who has lawful control is the person who the law would say has responsibility for the child at that particular time.
Q: Who are the certain people who cannot commit this offence?
(a) Where the child’s mother and father were married to or in a civil partnership with each other at the time of his birth mother and father
(b) Where they were not married or civil partners of at the time of the child’s birth mother
(c) Any legal or special guardian of the child
(d) Anyone with custody or named in a child’s arrangement order as a person with whom the child is to live.
In the case of a legitimate child born within marriage or civil partnership, neither mother or father can commit the s2 offence.
In the case of an illegitimate child born outside of marriage or civil partnership, mother cannot commit the s2 offence.
This means a mother can never commit the s2 offence. She can commit the s1 offence, but not s2 offence.
Nor can anyone with legal or special guardianship or anyone with custody or named in a child arrangements order as a person with whom the child is to live.
Q: What about the father of the illegitimate child?
He is not excluded from the offence- he is the one parental type person who can potentially commit the s2 offence.
Q: What defences are available to protect father’s of illegitimate children from committing a s2 offence?
The Child Abduction Act 1984, s2(3) states:
It shall be a defence for D to prove-
(a) where the father and mother of the child in question were not married to, or civil partners of, each other at the time of his birth—
(i) that he is the child’s father;
(ii) that, at the time of the alleged offence, he believed, on reasonable grounds, that he was the child’s father; or
(b) that, at the time of the alleged offence, he believed that the child had attained the age of 16.
Q: How can a father prove he is the child’s father on the balance of probabilities?
Via DNA test that proves positive- this would prove beyond reasonable doubt.
If the DNA test comes back negative then the male still has a defence provided he reasonably believed that he was the child’s father.
Q: What if D mistakenly takes the wrong child from nursery, thinking it is his own child?
Defence under s2(3)(a) will not apply here. It may be possible to advance a defence of reasonable excuse under s2(1) in this case.
