Foster & Anor v Director of Public Prosecutions

Under section 2 of the Child Abduction Act 1984, “removing” a child from lawful control concerns the objective consequence of the taking or detention. It does not require geographical movement or a subjective purpose to remove the child. The offence requires an intentional or reckless taking or detention of a child under 16, producing that consequence, subject to lawful authority or reasonable excuse.

Section 2(1)(a) applies where the child is presently in the lawful control of another person. Section 2(1)(b) applies where the child is kept out of the control of a person entitled to it, including where the child is already outside that control. The two forms are distinct and cannot be treated as alternatives.

Two appellants were convicted at Sheffield Magistrates’ Court of offences under section 2(1)(a) of the Child Abduction Act 1984. The charges alleged that they detained a 15-year-old girl on 2 March 2003 so as to remove her from the lawful control of her foster parents.

The appellants argued that any removal occurred on 1 March, when she was taken to their address, or that by 2 March she was already outside her foster parents’ control. The common issue was whether their later conduct could constitute removal under section 2(1)(a).

1. The appeals were allowed and the convictions were quashed.

2. The court followed the objective approach in Mousir [1987] Crim LR 561 and R v Leather [1994] 98 Cr App 179. The words “so as to remove” describe the objective consequence of the taking or detention. Removal does not require physical movement of the child. It may occur where the accused substitutes his authority or control for that of the person lawfully exercising control.

3. The mens rea is an intentional or reckless taking or detention of a child under 16, with the effect or objective consequence of removing the child from lawful control or keeping the child out of such control. Lawful authority or reasonable excuse remains a defence. To that extent, the court respectfully declined to follow the intention-based approach expressed in Re Owens [2000] 1 Cr App 195.

4. Section 2(1)(a) and section 2(1)(b) create distinct forms of the offence. Paragraph (a) requires the child to be in the lawful control of another person when taken or detained. Paragraph (b) requires only that the child be kept out of the control of a person entitled to it. The distinction is material to the charge.

5. The appellants’ conduct on 1 March had removed the girl from her foster parents’ control, but their belief that she was at least 16 provided the statutory defence. By the early hours of 2 March, after they knew her age and allowed her to remain hidden, they were detaining her. However, she was no longer in the foster parents’ actual lawful control. The offence charged under section 2(1)(a) was therefore not proved.

• High Court (Administrative Court): appeals by way of case stated allowed; convictions quashed.
• Sheffield Magistrates’ Court: both appellants convicted of offences under section 2(1)(a) of the Child Abduction Act 1984.