The extradition of 57 year old mother Eileen Clark to the US should serve as a warning for parents considering removing their children from a jurisdiction without parental consent.
Parental kidnapping is recognised both in the UK and many other countries but parents are often unaware of the potential consequences.
Anyone unsure about their right to take children abroad or anyone concerned about the risk of a parental kidnapping should seek immediate legal advice.
Background to Eileen Clark’s Case
In 1998 Eileen Clark fled from California to Oxford in order to escape an allegedly abusive relationship with her husband. Mrs Clark and her now adult children then settled and made a life in the UK.
Consequently, Mrs Clark was charged with ‘custodial interference.’ In 2008 authorities in the US became aware that she and the children were living in the UK. Custodial interference was not an extraditable offence and Mrs Clark was informed by her lawyer in the US that authorities were not seeking to force her return, meaning that she believed the charge to have been disposed of.
However, the Federal Authorities, acting under their commitments under the 1982 Missing Children’s Act, The International Parental Kidnapping Crime Act (IPKCA) of 1993, intervened and the charge against Mrs Clark was escalated to international parental kidnapping, a crime carrying a sentence of up to 3 years imprisonment.
In 2010, the US courts made an order to extradite Mrs Clark from the UK. Mrs Clark appealed against the extradition order on the basis that as she had suffered domestic abuse during her first marriage and she was suffering from Post-Traumatic Stress Disorder. In addition she cited a fear of flying which would make the return injurious to her health and create oppressive hardship for her.
However, the court refuted that this hardship could reasonably be characterised as ‘oppressive.’ The US authorities also assured that medical care and a charter flight could be arranged for Mrs Clark in order to alleviate any difficulties.
Although the UK courts criticised the American authorities for failing to order the extradition sooner, given that Mrs Clark had been living openly in the UK for 10 years and had remarried, the refusal to acknowledge that the case raised issues of general public importance means that it will be difficult for Mrs Clark to progress the case to the Supreme Court.
Mrs Clarks’ case raises several issues because at the time that the charges were brought Mrs Clarks’ children were adults and IPKCA defines a child as a person who has not attained the age of 16 years.
The law also provides defences to parents who remove children from individual States or the US as whole if a parent is fleeing domestic violence or circumstances that are not under their control. It is possible to argue that victims of domestic abuse that are not in control of these circumstances, meaning that both grounds are fulfilled.
Despite this, the Clark case highlights the need for the other parent to be informed of the intention remove children from the jurisdiction. Ultimately, it also shows that charges may still be brought against unrepresented parents removing children, even where defences exist. Many countries, including the UK, are bound to cooperate in returning children to resident countries under The Hague’s International Child Abduction Convention.