Nicolaou, R (on the application of) v Redbridge Magistrates' Court & Anor

For the purposes of section 1 of the Child Abduction Act 1984, taking or sending a child out of the United Kingdom refers to the act of removal. It is not a continuing activity. Where the appropriate consent existed when the child left the country, the offence is not retrospectively committed merely because the child is retained abroad after the consent expires. The statutory distinction between taking and detaining supports that construction. Subsequent provisions allowing limited overseas stays do not alter the original meaning of section 1(1), particularly where those provisions were introduced by later amendments.

The claimant had obtained court-authorised staying contact with his son in Cyprus for a defined period. The child was taken to Cyprus with the appropriate consent but was not returned when that period ended. An arrest warrant was obtained on the basis that the claimant might have committed an offence under section 1 of the Child Abduction Act 1984.

A district judge refused to withdraw the warrant, accepting that taking the child out of the United Kingdom could be a continuing activity. The claimant sought judicial review. The central issue was whether section 1 applied to the child’s subsequent retention abroad after initially lawful removal.

1. Judicial review allowed. The statutory expression “takes or sends the child out of the United Kingdom” concerns the act of removal and the question whether appropriate consent existed when the child left the country. It does not describe a continuing activity capable of becoming unlawful through later retention abroad.

2. The ordinary language of section 1(1) and the reference in section 3(a) to causing or inducing a child to accompany a person focus on removal from the jurisdiction. Section 2 reinforces that construction by distinguishing between taking and detaining, and between removing a child from lawful control and keeping the child out of that control.

3. The same distinction appeared in section 56 of the Offences against the Person Act 1861. If Parliament had intended section 1 to criminalise retention following initially consensual removal, clearer language referring to detention or keeping the child abroad would have been expected.

4. Section 1(4) of the Child Abduction Act 1984 did not support the contrary construction. That subsection was introduced by later amendments and could not change the meaning of section 1(1), which had to be construed by reference to the statute as originally enacted. It could instead be read as removing criminal liability for specified short overseas stays, notwithstanding a prima facie offence on removal.

5. That reading was consistent with section 13 of the Children Act 1989, where removal was likewise treated as a specific event. The Hague Convention reasoning in In re H (Abduction: Custody Rights) supported the distinction between removal and retention, although it was of limited relevance because the Convention and the domestic criminal statute concerned different legal regimes.

6. The district judge’s refusal to withdraw the warrant was quashed. The matter was to be remitted to the magistrates’ court with a direction that the warrant be withdrawn, subject to agreement of the precise order.

The judgment itself records the district judge’s refusal to withdraw the domestic arrest warrant. The Administrative Court allowed the judicial review application and directed that the warrant be withdrawn.