So, it’s the weekend… Whoop! Whoop!! And how i love weekends! Just knowing that i can stay up late on Friday night gives me great joy (in case you haven’t figured it out yet, I’m a nocturnal animal… my creative juices flow amply in the quiet night).
Anyway, i digress….
Remember the whole brouhaha with Nigerian celebrity, Davido and the accusations of child abduction laid against him by his baby mama Sophia and her uncle, Dele Momodu? Apparently, he (and his sister) had planned to take his daughter to Dubai for medical checkup, without first obtaining the mother’s consent. It was interesting to read comments from people expressing righteous indignation – “can a parent be accused of abducting their own child?” “It’s their child after all to do with as they see fit.” “What’s wrong with planning a vacation for your child? Seriously, what’s wrong with that?”
Errmmm! Excuse me, take a deep breath and try not to start hyperventilating.
Fact: A parent can be found guilty of child abduction.
When one parent takes a child out of the possession of and against the will of the child’s other parent, that is regarded as child abduction. This may happen either out of spite or to willfully hurt the other parent, however, in some cases, desperate parents may choose to turn a blind eye to the legal implications of their action in a bid to save their child from potential harm. Whatever the reason, the law regards such an act as child abduction where consent of the other parent was not obtained.
Note: *deep sigh* Taking a child away without the other parent’s consent can only be acceptable in Nollywood movies.
The general principle is that, unless otherwise agreed between the parents or by the courts, both parents have equal rights to a child. Thus, child abduction cases are usually treated as both family law and criminal law issues in most countries, Nigeria inclusive. Section 371 of the Nigerian Criminal Code is quite explicit.
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Chapter 32 Offences relating to Marriage and Parental Rights and duties 371. Any person who, with intent to deprive any parent, guardian, or other person who has the lawful care or charge of a child under the age of twelve years, of the possession of such child, or with intent to steal any article upon or about the person of any such child- (1) forcibly or fraudulently takes or entices away, or detains the child; or (2) receives or harbours the child, knowing it to have been so taken or enticed away or detained; is guilty of a felony, and is liable to imprisonment for fourteen years. It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father. |
Fourteen years! You see? Enough said.
Fact: You can plan a vacation out of your country for your child, there’s absolutely nothing wrong with that. As long as you have obtained consent!
Where the vacation is with only one parent/guardian, it is important that the travelling parent obtains the consent of the other parent evidenced by a consent letter.The consent letter must be signed by those with custody or guardian rights over the child and/or the non-accompanying parent. If a parent fails to obtain consent before taking their child for a vacation outside the country, that is international child abduction.
What is International Child Abduction?
The picture that immediately comes to mind is kidnapping of a child by strange men looking to get ransom from the parents.
In reality, International Child Abduction is simply kidnapping by a parent. It is the illegal removal (in breach of custodial rights) of children from their homes by an unauthorized acquaintance or family members to a foreign country.
In response to the increase in cross-border child abduction which was partly due to the increase in interracial marriages, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) was agreed upon by concerned States. The Hague Convention addresses the issue of child abduction across borders and establishes the procedure for the prompt return of children below the age of 16 years back to their country of habitual residence by Member States.
The Hague Convention considers the removal or retention of a child wrongful when it breaches the rights of custody granted to a person, institution or any other body, either jointly or alone, under the law of the Country of habitual residence of the child; and where those custody rights were actually exercised or would have been exercised at the time of the removal or retention. Custody rights could arise by law or by a judicial/administrative decision or by agreement between the parties.
Recovery of a child from a Hague Convention country is much easier when the child’s country of habitual residence is also a Hague Convention signatory. Chapter II of the Hague Convention mandates member States to establish a Central Authority whose responsibility will be to discharge the duties imposed by the Hague Convention. Duties includes, but are not limited to,
- discovering the child’s location; preventing further harm to the child;
- securing the voluntary return of the child and amicably settling the issues;
- exchanging information relating to the social background of the child; and
- initiate or facilitate the institution of judicial/administrative proceedings with a view to obtaining the return of the child.
Sadly, Nigeria is not yet a signatory to the Hague Convention.
The need for the establishment of a proper legal structure dealing with international child abduction cases in Nigeria cannot be overemphasized. With the increased rate of inter-country marriages by Nigerians home and abroad, Nigeria cannot afford to hesitate or waste further time on its decision to ratify the Hague Convention. The right of the Nigerian child to live a parental drama-free life should be supreme. Parents cannot keep playing chess with their children, using them as pawns to hurt the other parent.
I will be quick to clarify here – it is not in all parental abduction cases that the abducting parent chose to break the law just to hurt the other parent. In some instances, the abducting parent escapes with the child(ren) to save them from a worse fate. While it is understandable that the need to protect a child might make a parent forget the legal implications of their actions, the best approach is to seek refuge in the legal system.
As i write this post, Pakistan is taking steps to ratify the Hague Convention in the face of stiff opposition. It may be a good idea for Nigeria to get on with becoming a signatory to the Hague Convention. Ratifying the Hague Convention will definitely make it a lot easier for Nigerian parents whose children have been abducted to other countries to stand a better chance of recovering them. Doing this will also help protect the rights of foreign parents whose children were abducted to Nigeria.
A Legal Kaleidoscope 