The 1980 Hague Convention is an international treaty that assists parents in seeking the return of children who have been wrongfully taken or retained in another country without their consent. This treaty aims to prevent international child abduction by a parent and ensure that child arrangement decisions are made in the child’s country of habitual residence.
Child Abduction and the Hague Convention
As of 3rd April 2024, of the 103 countries who are contracting parties to the Hague Convention, 31 have ratified with the UK.
Many children have parents of different nationalities. Following a breakdown of relationship/separation, one parent may choose to move their child to another country without seeking the other parents’ consent. This is child abduction.
Child abduction can occur in two ways: –
1 – Wrongful removal – where a child is wrongfully removed from the country and taken abroad without a parent’s or courts consent.
2 – Wrongful retention – Where a child is retained in the foreign country following a holiday.
Abduction is unlawful and may lead to criminal sanctions.
The Key Principles of the 1980 Hauge Convention
- Return of the child – If a child is taken to a signatory country without the consent of the other parent (with parental responsibility), the convention allows the left-behind parent to apply for the child’s return.
- The case should be handled swiftly (usually within 6 weeks).
- Habitual Residence – The convention ensures that custody matters are decided in the child’s home country, not the country in which they were removed or retained.
Defences
Limited defences against return – the parent whom wrongfully removed or retained the child can object to the child’s return in limited cases, such as: –
- Consent (Article 13(a)) – Where the left-behind parent consented to the child’s removal/retention.
- Acquiescence (Article 13(a)) – Where the left-behind parent indicated verbally and following the abduction that they did not seek for the child to be returned.
- Child’s wishes (Article 13) – the child refuses to return, providing that the child has attained an age and degree of maturity to which their views should be given weight to. It must be shown, however, that their views have not been influenced by the abducting parent.
- Grave risk of Harm/intolerability (Article 13b) – If the child was returned to its country of habitual residence they would be exposed to grave risk of harm (physical or psychological) or would otherwise be placed in an intolerable situation.
In the above situation, it will be up to the court to determine whether there is sufficient evidence to prove that the limitation is valid.
If a child has been removed/retained for a period of 12 months or more without any Hague Convention proceedings being initiated, then the court may take the view that the child is settled given that a new status quo has been established and may determine that the child is not returned.
How to Apply?
In the UK, such applications are dealt with by the International Child Abduction and Contact Unit (ICACU).
It is essential that you seek independent legal advice if this situation arises. If you have a child/children who could be at risk of abduction or are currently in proceedings, then please contact our specialist lawyer, Rina Mistry, who will be able to advise and assist.
How Nelsons Can Help
Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children’s law, international family matters and domestic abuse.
If you need any advice concerning the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our solicitors can provide along with details of our hourly rates.
For more information or advice, please call Rina or another member of our team in Derby, Leicester, or Nottingham on 0808 258 0461 or contact us via our online form.