It is a very sad fact that as society becomes more internationally mobile and people are more prone to relocating abroad, there has been a parallel increase in the number of child abductions cases. You can imagine how easy it now is for people to enter into new relationships with others who are located in a different country through the medium of the internet. Consider now if this relationship fails and one party wishes to return to their original country of residence with their child/children from the relationship. 

 

Contracting states to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, have agreed that in this situation a child should be returned to their country of habitual residence so that any disputes between the parents regarding where the child should live can be resolved by the courts and in accordance with the law of that state. 

 

The Hague Convention therefore provides a means by which a parent, who is accusing the other of wrongfully removing or retaining their child abroad, can bring proceedings for the child’s return provided both the country of habitual residence and the country to which the child has been taken are contracting states. 

 

A contracting state may only refuse to order the child’s return to their country of habitual residence if the parent opposing the child’s return is able to establish one or more of the following defences, which are contained in Article 13 of the Convention: 

 

(i) the parent was not actually exercising custody rights at the time of the child’s removal or retention, or they had consented to or subsequently agreed to the child’s removal or retention;

 

(ii) there is a grave risk that their return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;

 

(iii) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views. 

 

A further development in this area of law occurred on the 1 November 2012, when the 1996 Hague Convention came into force in the UK. It primarily provides a framework for dealing with contact disputes over international borders and clarifying jurisdiction issues. It also has an impact on child abduction cases by limiting the abducting parent’s ability to establish the second defence mentioned above, known as the defence of harm. 

 

The 1996 Convention has given the court the power to ask the contracting state of the child’s habitual residence to put in place protective measures to ensure the safety of the child on their return and can also request information from the other contracting state about the protective measures available or in place.  

 

The defence of harm remains difficult to establish and the courts continue to apply a stringent test. It is important to remember that every case will turn upon its own facts. 

 

At the time of writing, there are 89 contracting states that are party to the convention, including the UK. We recommend you contact us should you find yourself in a situation where you wish to rely on the Convention. 


This article is written by  Ipek Bekir, Head of Family department at Lester Dominic Solicitors.