UK government officers charged with examining "flawed" Scottish child abduction laws encouraged each other to "fail to report back to ministers", damning files show.
In England and Wales there is legislation in place preventing a parent from taking children abroad without another parent or carer’s consent and police will assist in finding and returning children.
In Scotland, it is not a criminal offence unless there are certain court orders in place.
The loophole has been dubbed a "kidnapper's charter" and arose because of a last minute addition to the Child Abduction Act 1984, which only applied to Scotland.
Scotland already had the common law of Plagium which dealt with the theft of a person but the measure was only intended to be temporary.
It is said to have led to cases of children being brought from England to Scotland by a parent prior to removal overseas in an attempt to avoid criminal conviction.
The Herald has been shown documents which detail a written conversation in 1990 between senior officers who reported to ministers including the then Secretary of State for Scotland Malcolm Rifkind.
Mr Otton, of criminal justice and licensing, states that he is "not sure whether a case has even been made for a change and whether there are any practical problems with the current law" despite ministers already acknowledging their concerns.
In a letter to George Younger, Secretary of State for Scotland, Michael Ancram, the then Under Secretary wrote: "The purpose of this Bill is to protect children and the rights of children in very distressing child-snatching cases. We may already be seen to be giving Scottish children less protection in the Bill, and it would be unfortunate if, by differing from the English on this point, we were thought to be giving even less”.
The 1990 documents show that Mrs Brannan (principal officer, criminal justice and sentencing policy) sent a note to Mr Lugton (head of criminal justice and licensing) writing: “My inclination is simply to fail to report back to Ministers on this at the present unless they ask.
"They have plenty of other worries to preoccupy them at the moment.
Mr Otton replies "Phew."
The documents were obtained from National Records of Scotland archives by an Ayrshire father Nathan Gilmour whose young children were 'abducted' by his ex-wife and taken abroad three years ago.
He says the officers "negligence" resulted in the laws remaining unchanged under the pre-devolution Conservative government.
Mr Gilmour separated from his wife in December 2017 and in April the following year, Mrs Gilmour refused to allow her husband access to his children, resulting in a court battle at Ayr Sheriff Court.
Following a lengthy legal process, Sheriff Scott Pattison ordered Mrs Gilmour to allow her husband access to the children.
However, instead of taking them to their first meeting, she left the country with his children, who were one and four at the time.
Under the current laws there was very little recourse for Mr Gilmour, a former teacher who lives in Ayrshire.
The case is further complicated by the fact that the children were thought to have been taken to the Turkish Republic of Northern Cyprus.
The area is not a signatory of the Hague Convention, a series of international treaties which encourage the prompt return of abducted children to their country of habitual residence, and to organize or secure the effective rights of access to a child.
Mr Gilmour said the Scottish Government had also failed in its responsibilities to make changes to the act since powers were devolved. He has now had some contact with his children but is pushing for a Judicial Review.
He said: "We were hugely disheartened to discover that there had been deliberate steps taken by senior government officials in 1990 to prevent child protection legislation from being formed.
"These negligent events and the lack of responsibility taken by both the UK and Scottish Government thereafter have had a hugely damaging effect on Scottish children.
"The lack of protection offered by Scottish law has been acknowledged and documented for 40 years.
"The harm that parental child abduction causes has also been well researched and evidenced.
"Why steps have not been taken to make appropriate amendments is beyond me?
"I believe that circumstances would have been very different for my children had there been effective deterrents in Scottish law.
"I'm one of the lucky parents - I now have contact with my wonderful children after a long and very difficult period of absence.
He added: "With the government now determined to view child-related legislation through the protective lens of the UN children's rights charter, I believe there is now excellent opportunity to put this historical negligence to bed.
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According to the charity Reunite International, there are upwards of 600 cases of parental child abduction reported each year.
Mr Gilmour is being legally assisted by Pauline Barr of Cannons Law Practice in Glasgow and Advocates David Cobb and Ximena Vengoechea.
Ms Barr said: "The provisions available under Scots civil law are entirely ineffectual beyond the scope of Hague Signatory countries.
"In such circumstances, the only recourse to the “left behind parent” is the commencement of criminal proceedings, but that requires for the conduct to be classed as an offence, which is not the case at present, yet is the current position in England.”
She carried out research which found that 97% of 750 Scottish parents or guardians wrongly believe it a criminal offence for a parent to remove a child from the UK without intending to return.
She said: "This shows a clear lack of understanding as to the current legislative position."
Ms Vengoechea added: "It is important to note that where parents require permission to remove a child, withholding it can be a means to exert coercive control, something which affects migrant parents disproportionately and which is something the legislation tries to prevent.”
Mr Gilmour said other countries had been able to make laws that balanced parental rights.
He said: "If they can apply protective, preventative and effectual legislation, then why can't we?"
A spokesman for the Scottish Government said: "We are aware of Mr Gilmour’s distressing case and liaised with him to try and secure the children’s return.
“We are currently reviewing the legislation in Scotland that makes it an offence for a person connected with a child under 16 to take or send the child out of the UK without the appropriate consent where a court order is in place.
"This review is in line with our Family Justice Modernisation Strategy. We aim to publish the results of the review by the end of this year.”
The UK Government did not respond to The Herald.
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