CS, R v

Where Child Abduction Act 1984 section 1 criminalises the unauthorised removal of a child from England and Wales, the statutory child-protection scheme excludes a defence of necessity. The offence reinforces the court’s ability to protect the child while the child remains within its jurisdiction.

Alternatively, necessity or duress of circumstances requires an objectively reasonable belief in a threat of death or serious physical injury, and an objectively reasonable and proportionate response. A defence should not be left to the jury where the alleged threat is not imminent and removal from the jurisdiction is not a reasonable or proportionate response.

The appellant, the mother of L, removed L from England and Wales without the consent of L’s father or the court. She accepted that neither statutory exemption applied. She contended that she believed L was at imminent risk of sexual abuse and that removal was necessary to protect her.

At the Crown Court at Portsmouth, Judge Hetherington ruled that necessity was unavailable under the statutory scheme and, alternatively, that the facts in the defence statement could not establish the defence. Following that ruling, the appellant admitted elements of the offence and a formal guilty verdict was returned. The appeal concerned whether necessity should have been left to the jury as a defence to an offence under section 1 of the Child Abduction Act 1984.

1. Appeal dismissed. The judge was right to rule that the defence of necessity was unavailable to this charge.

2. The legislative scheme for child protection places ultimate responsibility on the court to decide contact, residence and custody in the child’s best interests. Section 1 of the Child Abduction Act 1984 reinforces that scheme by criminalising unauthorised removal from England and Wales, so that the child remains subject to the protection and enforceable orders of the domestic courts. The section contains specified exemptions. It leaves no place for a further defence of necessity where a parent removes the child from the jurisdiction.

3. The court’s conclusion was supported by R v Quayle [2005] 1 WLR 3642, in which statutory policy precluded necessity for the relevant drug offences. The present statutory purpose was even more directly concerned with maintaining the child within the jurisdiction. The court did not decide whether necessity might arise if a parent declined, within the jurisdiction, to hand a child to a person alleged to present a risk.

4. Alternatively, even if necessity were available, the defence statement disclosed no case for the jury. Applying R v Colin Martin (1989) Cr App R 343, the asserted belief and response had to satisfy objective standards. The alleged chain of events did not establish an imminent threat, and removal from the jurisdiction was neither reasonable nor proportionate. The appropriate course was to seek the protection of the court in the care proceedings.

• Court of Appeal (Criminal Division): The appeal was dismissed: [2012] EWCA Crim 389.

• Crown Court at Portsmouth: Judge Hetherington ruled that necessity was unavailable under section 1 of the Child Abduction Act 1984 and, alternatively, that the defence statement could not establish it. A formal guilty verdict followed after the appellant admitted four elements of the offence.