Hague Convention on Child Abduction
The Hague Convention on Child Abduction is unlike other laws about children: Although it is fundamental to international child law, in the Hague Convention the child’s welfare is not paramount. Instead the Hague Convention on Child Abduction regulates which country has the power (jurisdiction) to decide where the child should live, namely the country where the child was habitually resident. The Hague Convention then provides for a return to that country. The Convention is a treaty about where the jurisdiction of the courts of one country ends and that of the courts of the other country starts . It must therefore be seen in a line of international treaties that demarcate boundaries, similar to those about fishing rights etc. If a return is ordered, that does not mean that the court has found that it is best for the child to live in the country where it came from and the courts there may well give the parent permission to relocate later on.
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Child abduction can be either a move from one country to another (removal) or a non-return of a child, for example at the end of a holiday or contact time (wrongful retention).
For a removal of a child from one country to another or a retention to be “child abduction” under the Hague Convention the following have to apply:
- The child has to be habitually resident in the country from where it is taken. Therefore returning from holiday to the country of habitual residence is not abduction. Sometimes the issues on this are not clear.
- The move has to be in breach of “rights of custody” of someone else. The term is not the same as a similar term in national laws. In England that is generally “parental responsibility”, but some other orders made can also fall into this. If in doubt, you should get legal advice from an expert on your specific situation. Importantly, if there is a court case about the child that has started and not finished, the court is regarded as having “rights of custody” for the purposes of the Hague Convention. Therefore if, for example, a father without parental responsibility is worried about a move abroad, making an urgent application for parental responsibility to the court and getting it issued, can mean that any move will then be in breach of the court’s rights of custody and count as child abduction under the Hague Convention.
- The “rights of custody” have to be exercised at the time of the move. This can, of course, be fairly low involvement.
“Defences” – When a Court does not Need to Order a Return
The Hague Convention provides that the court must order a return. However, it has the power not to order a return in the following cases:
- If more than a year has passed since the removal or retention of the child and the child is settled in its new environment.
- If the person or body (e.g. the court) with “rights of custody” agreed to the removal or retention either beforehand or afterwards.
- If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This risk must arise out of the proposed return to the other country. So for example if there has been domestic violence by the father on the mother witnessed by the child and the mother took the child to her home country, the court may find that the laws of the other country will protect her and the child sufficiently so that no further violence is likely to take place.
- If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Again, this is interpreted by the English courts very narrowly. The objection must be to the country, not to living with the other parent (which is not something the court is asked to decide on in any event).
These defences are interpreted very narrowly, at least by the courts in England and you should not rely on the court finding in favour of them unless the case is very strong. No other defences are possible. If you think a defence applies, you must get specialist legal advice on your particular circumstances. Child abduction cases go through the appeal courts every year, so the exact way the courts in England and Wales interpret the provisions of the Hague Convention changes all the time.
If you are the parent left behind and the child has already left the country, you must act fast. You should immediately get in touch with the Central Authority in your country. Details for the English and the German Central Authorities are in the links section on this page. Usually they ask you to complete a form. If you can do so in the language of the country where the child has been taken to as well as in the language of the country where you are contacting the Central Authority, that will help and save the time of having to have the form translated. However, the English Central Authority, the International Child Abduction and Contact Unit, will have translations made for you for free. They do not charge for their services. You should also supply photographs of the children.
The Central Authority in your country should then check the details and immediately fax them to the Central Authority in the country where the child is. What happens then depends on each country. The matter should come before a court to decide on the issue expeditiously.
In England child abduction will be dealt with by the Family Division of the High Court only, which means that the small number of judges have been able to build up expertise in this area. In England legal aid is free for every left-behind parent whether they are rich or poor for the application under the Hague Convention (but will be means- and merits-tested for any other applications). The solicitor dealing with the matter must have a contract to do legal aid work and the International Child Abduction and Contact Unit will either allocate the matter to such a solicitor, who should then get in touch with you, or they will facilitate your solicitor to get the legal aid if you have already found one who has a legal aid contract.
If you are the parent who is accused of child abduction, you do not get legal aid automatically. It would be means and merits tested. If you do not get legal aid you have to pay for your own legal fees.
In other countries child abduction is sometimes dealt with by a public prosecutor, who may have little or no experience in this area. This should, however, not prevent you from finding and paying for your own lawyer.
In some countries the issues are dealt with at the lowest level of court, which can be problematic because child abduction cases are relatively rare and this may be the first time this judge or any of their colleagues in the court area have come across one. Often this means that the judges then consider the welfare of the child as paramount, which they are not supposed to do.
In England your solicitor will start the proceedings and a barrister will usually see a duty judge the same day to get an order for some emergency measures, including that the child must not be taken to a third country, for the passport to be surrendered etc. The court would then also list a short hearing where the other parent can be represented and attend and where the court will consider which directions are necessary for a final hearing. Usually both parents must provide witness statements in writing. A final hearing will then be a few weeks later.
Since the proceedings are very fast, the solicitor and the client must be very vigilant and deal with matters expeditiously. It helps if communication can be by email and/or fax. Usually, each parent will only be able to provide one witness statement, so you may need to anticipate what the other parent will say (for example as a defence).
Special Rules in the EU
In the EU (except Denmark), the “Brussels II” Regulation (2201/2003, sometimes also called “Brussels II A” or “Brussels II bis”), makes further provisions. These are complicated and this is a list of some of the important additional points that apply between EU countries:
- If the court considers defences the child should be heard unless it would be inappropriate. In England this usually is done though a social worker from CAFCASS meeting the child and reporting to the judge. In other countries the judge will meet with the children.
- The court shall issue its judgment six weeks after the application. This does not deal with the time that it takes from the Central Authority receiving the case to the application being issued, nor with the time for any appeal.
- If the court does not order a return on the basis of one of the defences (under Article 13 of the Hague Convention: other than the reason that a year has passed and the child is settled in its new environment), it shall transmit the judgment via the Central Authorities and then to the parties within one month. The parties than have three months to apply to the court in the country where the child used to live and that court can order a return, which will trump the order for non-return by the other court.
The detailed provisions are complicated and in any case of child abduction you should get specialist advice from an expert solicitor.
Even in international cases it is possible to come to an overall agreement through mediation. Sometimes it may be necessary to start court proceedings in one country first so that the other party cannot do that in another country. However, litigation in international cases can be costly, in particular if there are legal proceedings in more than one country. Mediation can cut through this and you can start mediation at any time in the proceedings.
For advice on your specific circumstances please contact a solicitor
6 May 2016 by Andrea Woelke