CA-2025-000682 - [2025] EWCA Civ 1058

In R v Kayani [2011] EWCA Crim 2871; [2012] 1 WLR 1927 the Court of Appeal (Criminal Division) (Lord Judge LCJ, McFarlane LJ and Royce J) considered a case of child abduction. At the outset of the judgment, the court said this:

“2.

Child abduction, like every other offence, can take many forms. It may include the abduction of a child for a few days, or even a week or two, followed by the child’s return, effectively undamaged, and, more important, although the parent from whom the separation was effected has suffered distress and anxiety in the meantime, with the loving relationship between parent and child quite unharmed. At the other extreme there are offences of forced marriage which ultimately culminate in what in reality is rape, or cases like the present, where the child is deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other is irremediably severed.

…

5.

At its most serious, therefore, the offence of child abduction is akin to kidnapping. On conviction for kidnapping a sentence of life imprisonment is available. For offences contrary to the 1984 Act, the maximum sentence is 7 years imprisonment. This wide discrepancy seems illogical. There are some cases of child abduction where, given the maximum available sentence, with or without the appropriate discount for a guilty plea, the available sentencing options do not meet the true justice of the case, properly reflective of the culpability of the offender, and the harm caused by the offence.”

The court accordingly recommended that the maximum sentence for child abduction should be increased. In 2014, the Law Commission recommended that the maximum sentence should be increased to 14 years. That recommendation has not yet been put into law.

In considering the sentences in that case, the court further said this:

“54.

The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life, whether at common law, or in accordance with Article 8 of the Convention, is misconceived. In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate. …”

The present case is not of course the subject of criminal proceedings in this jurisdiction, but I refer to these matters because they emphasise that prolonged child abduction is not only a criminal offence but also a pernicious form of child abuse.

Child abduction of this kind may also be an extreme form of domestic abuse. Domestic abuse is defined in the Domestic Abuse Act 2021 as consisting of physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse. PD12J (titled ‘Domestic Abuse and Harm’) applies this definition to family proceedings at paragraph 2A. Depending on the facts, abduction may amount to controlling behaviour, and it is clearly capable of amounting to psychological, emotional or other abuse.