solicitor would not be privileged as it would be overridden by the child’s interests. Indeed, the current Guide to the Professional Conduct of Solicitors in England and Wales treats child abduction as a form of child abuse.1339
13.59Section 34 of the Family Law Act 1986 provides power to make an order for recovery of the child where a child has not been given up to the lawful custodian by the person who is in breach of a custody order. The police are authorised to take charge of the child and deliver him to the custodian. They also have authority to enter and search any premises where there is reason to believe the child may be found and to use such force as may be necessary to give effect to the order.1340
13.60The Scottish Law Commission reported in 1987, having had the opportunity of reviewing the Child Abduction Act 1984.1341 They proposed an offence of taking or sending a child abroad in contravention of a court order.1342 The Scottish Law Commission also recommended that the court should be able to make an order prohibiting removal of the child by any person in those instances where the court would have power to make a custody order.
13.61They recommended that a police constable would have the power to arrest without warrant anyone whom he reasonably suspects of attempting to commit, committing or having committed the proposed offences.1343 Section 7 of the Child Abduction Act 1984 already gave a power of arrest for an offence committed in Scotland of taking or sending a child out of the UK.
13.62They also proposed an offence of taking or detaining a child from any person having lawful control. Excluded would be those acting with lawful authority or reasonable excuse.1344 Those with lawful authority should include those with a right of custody and those with a right of access but only while acting within the scope of that right of access. We understand that their criminal law recommendations have not been implemented.
13.63In considering section 1 of the Child Abduction Act 1984, the Irish Law Reform Commission queried whether it was sufficient that a belief that the
1339 Annex 16B, Guidance - confidentiality and privilege - child abuse and abduction, (6th ed, 1993).
1340 Section 34(2).
1341 Child Abduction, (1987: Scot Law Com. No.102).
1342 Ibid at recommendation at 6.18.
1343 Ibid at 7.9.
1344 Ibid at 4.30.