How Does The 1980 Hague Convention Work?

How Does The 1980 Hague Convention Work?

For some, the term ‘child abduction’ conjures up visions of a child being snatched from the street by a stranger. However, these types of cases are, thankfully, extremely rare. Most cases of child abduction involve the child being illegally removed from the country by their parent. In such cases, the left-behind parent may be able to rely on the Hague Convention on the civil aspects of international child abduction of 25 October 1980 (1980 Hague Convention) to seek their child’s return to the UK.

What is the 1980 Hague Convention?

The 1980 Hague Convention is an international treaty signed by 103 countries, including the UK. It provides for the return of a child to the country in which they are habitually resident. The returning court does not have the jurisdiction to decide whether or not the child would be better off in their country of habitual residence. Instead, the Convention is a treaty about where the jurisdiction of the courts of one state ends and that of the courts of the other country begins. Therefore, in deciding to return a child to a particular country, the returning court is not determining any matters concerning with whom the child is to live with and/or contact with the non-resident parent. These matters are to be decided in the country where the child is deemed to be habitually resident.

How is ‘child abduction’ defined?

Child abduction typically involves a child being removed from their country of habitual residence or not returned to that country (for example, at the end of a holiday).

To be a habitual resident of a country, the child’s daily life must take place in that particular state. For example, this may be the country where the child goes to school, participates in their hobbies, spends time with family and friends, and receives dental and medical treatment.

If there is a Child Arrangement Order (CAO) in place, then the person stated in the CAO with whom a child is to live can take their child abroad for up to one month without the consent of the other parent or the court. If a resident parent is not named on the CAO, they must apply to the court for a Specific Steps Order to take their child abroad.

Failure to return the child to the UK after one month or removing them from the country without the court’s permission may be classed as child abduction.

What should I do if my child has been abducted?

It is important to contact a Family Law Solicitor experienced in international child abduction cases immediately. This is because the 1980 Hague Convention requires that signatories act quickly in proceedings. Your solicitor will have a few weeks to prepare an application and file evidence. Therefore, instructing someone who is experienced in Hague Convention cases is imperative.

Does the foreign court have to return my child to the UK under the 1980 Hague Convention?

In most cases, the court must order that the child be returned to their country of habitual residence. However, if one of the below situations apply, the court can decline to return the child:

• More than one year has passed since the child was abducted, and they have settled into their new country.

• The left-behind parent agreed to the child being taken overseas (or being allowed to remain abroad for longer than one month).

• Making an order to return the child would put them at grave risk of physical or psychological harm or otherwise place the child in an ‘intolerable situation.’ This is the most common defence pleaded by an abducting parent, or

• The child does not want to go back to their country of habitual residence and is of an age and maturity that their views must be considered.

How do the courts define a ‘grave risk’ of physical or psychological harm or an ‘intolerable situation’?

The Supreme Court decision of Re E (Children: Custody Appeal) [2011] UKSC 27 provides helpful guidelines concerning what is meant by a ‘grave risk’ of physical or psychological harm or an ‘intolerable situation. It ruled that:

• The risk of the harm must be “grave”; it is not enough for the risk to be “real”.

• Intolerability signifies a situation which the particular child in the particular circumstances of the case should not be expected to tolerate.

• The source of the grave risk of harm is irrelevant.

• If it is established that “adequate arrangements can be made to secure the protection of the child after return”, the court cannot refuse to return the child.

It is vital to reiterate that by returning a child, the foreign court is not making any decisions on the arrangements for the child’s residence and contact with a particular parent. It is simply sending the child back to the jurisdiction where such matters can be decided.

Final words

If your child has been abducted by their parent, while it is completely understandable, try not to panic. Please contact one of our compassionate and highly experienced international children’s law Solicitors immediately. They will rapidly assess the situation as quickly as possible and, if appropriate, take the legal steps required to have your child returned to the UK.

If your child has been abducted or you are worried that they may have been, please get in touch through our emergency number, 0300 373399.