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The Child Abduction (Northern Ireland) Order 1985

Sections12
1985 No. 1638 (N.I. 17)

The Child Abduction (Northern Ireland) Order 1985

30th October 1985

1 Title and commencement

1 This Order may be cited as the Child Abduction (Northern Ireland) Order 1985.
2 This Order shall come into operation on the expiration of 2 months from the day on which it is made.

2 Interpretation

1 The M1 Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
2 For the purposes of this Order—
a a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken;
b a person shall be regarded as sending a child if he causes the child to be sent;F1. . .
c a person shall be regarded as detaining a child if he causes the child to be detained or induces the child to remain with him or any other person and
d references to a child's parents and to a child whose parents were (or were not) married to , or civil partners of, each other at the time of his birth shall be construed in accordance with Article 155 of the Children (Northern Ireland) Order 1995 (which extends their meaning).

3 Offence of abduction of child by parent, etc.

1 Subject to paragraphs (2A) to (3A) and (7), 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.
2 A person is connected with a child for the purposes of this Article if—
a he is a parent of the child; or
b in the case of a child whose parents were not married to , or civil partners of, each other at the time of his birth, there are reasonable grounds for believing that he is the father of the child; or
c he is a guardian of the child; or
d he is a person in whose favour a residence order is in force with respect to the child; or
e he has custody of the child.
2A A person does not commit an offence under this Article by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if—
a he is a person in whose favour there is a residence order in force with respect to the child, and
b he takes or sends him out of the United Kingdom for a period of less than one month.
2B Paragraph (2A) does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part III of the Children (Northern Ireland) Order 1995.
3 A person does not commit an offence under this Article by doing anything without the consent of another person whose consent is required under the foregoing provisions if—
a he does it in the belief that the other person—
i has consented; or
ii would consent if he was aware of all the relevant circumstances; or
b he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or
c the other person has unreasonably refused to consent,
3A Paragraph (3)(c) does not apply if—
a the person who refused to consent is a person—
i in whose favour there is a residence order in force with respect to the child; or
ii who has custody of the child; or
b the person taking or sending the child out of the United Kingdom is, by so acting, in breach of an order made by a court in the United Kingdom.
4 Where, in proceedings for an offence under this Article, there is sufficient evidence to raise an issue as to the application of paragraph (3), it shall be for the prosecution to prove that that paragraph does not apply.
5 In this Article—“the appropriate consent”, in relation to a child, means—
a the consent of each of the following—
i the child's mother;
ii the child's father, if he has parental responsibility for him;
iii any guardian of the child;
iv any person in whose favour a residence order is in force with respect to the child;
v any person who has custody of the child; or
b the leave of the court granted under any provision of Part III of the Children (Northern Ireland) Order 1995; or
c if any person has custody of the child, the leave of the court which awarded custody to him;
  • “guardian of a child”, “residence order” and “parental responsibility” have the same meaning as in the Children (Northern Ireland) Order 1995;
  • and for the purposes of this Article a person shall be treated as having custody of a child if there is in force an order of a court in the United Kingdom awarding him (whether solely or jointly with another person) custody, legal custody or care and control of a child.
7 This Article shall have effect subject to the provisions of the Schedule in relation to a child who is in the care of an authority (within the meaning of the Children (Northern Ireland) Order 1995F3. . . or who is committed to a place of safety or who is the subject of proceedings or an order relating to adoption or who is subject to a juvenile justice centre orderF4.

4 Offence of abduction of child by other persons

1 Subject to paragraph (3), a person, other than one mentioned in paragraph (2), 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.
2 The persons are—
a where the father and mother of the child in question were married to , or civil partners of, each other at the time of his birth, the child's father and mother;
b 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, the child's mother; and
c any other person mentioned in sub-paragraphs (c) to (e) of Article 3(2).
3 In proceedings against any person for an offence under this Article, it shall be a defence for that person 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; or
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.

5 Penalties and prosecutions

1 A person guilty of an offence under this Order shall be liable—
a on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both;
b on conviction on indictment, to imprisonment for a term not exceeding 7 years.
2 No prosecution for an offence under Article 3 shall be instituted except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

6 Restriction on prosecutions for offence of kidnapping

Except by or with the consent of the Director of Public Prosecutions for Northern Ireland no prosecution shall be instituted for an offence of kidnapping if it was committed—
a against a child under the age of 16; and
b by a person connected with the child, within the meaning of Article 3.

7 Consequential amendments and repeals

1 At the end of paragraph 1(b) of the Schedule to the M2 Visiting Forces Act 1952 (definition of “offence against the person”), there shall be inserted, appropriately numbered—
2 In Schedule 1 to the M3 Children and Young Persons Act (Northern Ireland) 1968—
a for the words “55 or 56” there shall be substituted the words “ or 55 ”; and
b at the end there shall be added—
Para. (3) rep. by 2004 NI 3
4 The following provisions are hereby repealed—
a section 56 of the M4 Offences against the Person Act 1861;
Sub‐para. (b) rep. by 2004 NI 3

SCHEDULE 

MODIFICATIONS OF ARTICLE 3 FOR CHILDREN IN CERTAIN CASES

Article 3(7).

Children in the care of an authorityF9. . .

1
1 This paragraph applies in the case of a child who is in the care of an authority (within the meaning of the Children (Northern Ireland) Order 1995)F7. . .
2 Where this paragraph applies, Article 3 shall have effect as if—
a the reference in paragraph (1) to the appropriate consent were a reference to the consent of the authorityF7. . . ; and
b paragraphs (2A) to (4) and the definition of “the appropriate consent” in paragraph (5) were omitted.

Para. 2 rep. by 1998 NI 9

Adoption

3
1 This paragraph applies in the case of a child—
a who is the subject of an order under Article 17 or 18 of the Adoption (Northern Ireland) Order 1987 freeing him for adoption; or
aa who is the subject of a pending application for such an order; or
aaa who is the subject of a pending application for an adoption order; or
b who is the subject of an order under Article 57 of the Adoption (Northern Ireland) Order 1987 or section 38 of the Adoption Act (Northern Ireland) 1967 relating to adoption abroad or of a pending application for such an order.
2 Where this paragraph applies, Article 3 shall have effect as if—
a the reference in paragraph (1) to the appropriate consent were a reference—
i in a case within sub‐paragraph (1)(a), to the consent of the adoption agency which made the application for the order or, if the order has been varied under Article 21 of the Adoption (Northern Ireland) Order 1987 so as to give parental responsibility to another agency to the consent of that other agency;
ia in a case within sub‐paragraph (1)(aa) or (aaa), to the leave of the court to which the application was made; and
ii in a case within sub-paragraph (1)(b), to the leave of the court which made the order or, as the case may be, to which the application was made, and
b paragraphs (2A) to (4) and the definition of “the appropriate consent” in paragraph (5) were omitted.
3 In this paragraph—
a “adoption agency” has the same meaning as in Article 3 of the Adoption (Northern Ireland) Order 1987; and
b “adoption order” means an order under Article 12(1) of that Order.

Children subject to training school orders

4
1 This paragraph applies in the case of a child who is subject to a juvenile justice centre orderF13, except where he is lawfully living with his parents or either of them.
2 Where this paragraph applies, Article 3 shall have effect as if—
a the reference in paragraph (1) to the appropriate consent were a reference to the consent ofF13 the managers of the juvenile justice centreF13; and
b paragraphs (2A) to (4) and the definition of “the appropriate consent” in paragraph (5) were omitted.
3 In this paragraph, “juvenile justice centre order” has the same meaning as in Article 39 of the Criminal Justice (Children) (Northern Ireland) Order 1998F13.

Cases within paragraphs 1 and 3

5In the case of a child falling within both paragraph 1 and paragraph 3, the provisions of paragraph 3 shall apply to the exclusion of those in paragraph 1.

Footnotes

  1. F1
    1995 NI 2
  2. F2
    1995 NI 2
  3. F3
    1998 NI 9
  4. F4
    prosp. inserted by 2002 c. 26
  5. F5
    1995 NI 2
  6. F6
    1995 NI 2
  7. F7
    1998 NI 9
  8. F8
    1995 NI 2
  9. F9
    1998 NI 9
  10. F10
    1987 NI 22
  11. F11
    1995 NI 2
  12. F12
    1998 NI 9
  13. F13
    prosp. inserted by 2002 c. 26
  14. F14
    1995 NI 2
  15. F15
    Words in art. 2(2)(d) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 34(2) (with regs. 6-9)
  16. F16
    Words in art. 3(2)(b) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 34(3) (with regs. 6-9)
  17. F17
    Words in art. 4(2)(a) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 34(4)(a) (with regs. 6-9)
  18. F18
    Words in art. 4(2)(b) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 34(4)(a) (with regs. 6-9)
  19. F19
    Words in art. 4(3)(a) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 34(4)(b) (with regs. 6-9)
  20. M1
    1954 c. 33 (N.I.)
  21. M2
    1952 c. 67
  22. M3
    1968 c. 34 (N.I.)
  23. M4
    1861 c. 100