UK: The Hague Convention

Last Updated: 19 December 2001
Article by Tanya Roberts

The Purpose

In the interest of children, parents and others should not abduct them from one jurisdiction to another. Decisions relating to the custody (residence) of the children are best decided in the jurisdiction of their habitual residence. The UK ratified and implemented the two international conventions, the Convention on the Civil Aspects of International Child Abduction (which we call "the Hague Convention") and the European Convention of Recognition and Enforcement of Decisions concerning Custody of Children (which we call "the European Convention") by the bringing into force of Child Abduction and Custody Act 1985 in 1986.

Most countries in the world have not ratified either convention but currently 38 states and territories have ratified the convention and a further 38 states have acceded to it. The terms of the conventions do not apply to a child who has been taken to non-Hague Convention or European Convention countries. The difference between the Hague Convention and the European Convention is that the Hague Convention seeks to protect "rights of custody", whereas the European Convention seeks to facilitate the recognition and enforcement of decisions relating to custody or access (contact).

Therefore for an application to be made under the Hague Convention, there does not necessarily have to be a court order concerning the custody of the child in the first place.

The aim is to return a child who has been wrongfully removed or retained as quickly as possible. The Hague Convention proceedings do not consider the long term merits of where the child should live or with whom but seek to secure the prompt return of the child to the appropriate jurisdiction, for that jurisdiction to decide.

Application

The Hague Convention applies where a child is under the age of 16 years and was habitually resident in one contracting state immediately before the removal or wrongful retention in the other contracting state, in breach of rights of custody of the Applicant.

Habitual Residence

This should be understood according to the ordinary and natural meaning of the word. It is similar to "ordinary residence". In many cases there is a dispute as to whether a child has been habitually resident in the contracting country (the country from which the child has been removed) prior to the removal. It is a question of fact to be decided after consideration of all the circumstances of a particular case. If habitual residence is in dispute, the burden of proving that the child’s habitual residence had changed prior to the removal is upon the person who seeks to prove that, i.e the person who removed the child.

One parent is not allowed to unilaterally change a child’s habitual residence without the agreement of the other parent, unless independent circumstances have arisen pointing to a change. However, the situation can be different in certain countries where the parents are unmarried.

Wrongful Removal or Retention

1. This occurs where the removal or retention is in breach of rights of custody attributed to person or an institution or body, under the law of the state in which the child was habitually resident immediately before the removal or the retention.

and

2. at the time of the removal or retention, those rights of custody were actually exercised, or would have been exercised but for the removal or retention.

Wrongful removal and wrongful retention are mutually exclusive events. Where both parents agree to a child being removed from his country of habitual residence for a limited period only, but before the expiration of the agreed period, one parent decides that he or she does not intend to return the children to their country, a wrongful retention would have occurred at that time. This is because the retaining parent’s actions are fundamentally inconsistent with the basis on which the child came to stay in the new jurisdiction.

Rights of Custody

Under the Hague Convention these include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. Rights of custody are determined in accordance with the law of the state in which the child was habitually resident immediately before the removal or retention. The child does not necessarily have to have been living with the parent seeking the return provided he had and was exercising custody rights.

Mere rights of access (contact), or the potential for obtaining a prohibition on removal from the jurisdiction, are insufficient to establish that there has been a right of custody.

The Welfare of a Child

Unlike most other areas of English law relating to children, the child’s welfare is not the Court’s paramount consideration, although it remains relevant. The Court has to balance the welfare of the child against the fundamental purpose of the Convention, which is that wrongfully removed children should normally be returned summarily to their state of habitually residence.

Procedure

You (the applicant) have made an application to your central authority in the country where you live. Your central authority has already considered whether the Hague Convention is applicable and has forwarded your application for the return of your child under the Hague Convention to the central authority to the UK, called The Lord Chancellor’s Department. The Lord Chancellor’s Department has instructed this firm to conduct your application. We have applied for legal aid on your behalf, which is non-means tested.

Issuing Proceedings

Child abduction cases are dealt with by the Family Division of the High Court. The Judges are specialists in this work. We will issue proceedings at the High Court on your behalf for the return of the child and obtain a stay put order preventing the child from being further removed from the jurisdiction of England and Wales. As soon as we have located your child, these proceedings will be served on the person with whom the child is living. He or she will be ordered to attend Court within a very short time, possibly also with the child. The Court will then consider how to conduct the proceedings in the future, bearing in mind that proceedings must be dealt with as expeditiously as possible.

Assuming that there are no difficulties in locating your child, (and we can obtain the Court’s permission to make various investigations to locate the child, if you do not have an address for the child), the person with whom the child is will have to provide a statement of defence to the Court and to us, together with a statement setting out more detail as to any defences.

There is a presumption that the child should be returned to his or her home state forthwith.

There is one important exception, which is when an application under the Hague Convention has been made more than one year after the child was wrongly removed or retained. In that case there is still an obligation on the Court to order the return of the child but if it is demonstrated that the child has now settled in the new environment, i.e. in the UK, the Court can exercise its discretion not to order a return.

Article 13 Defences

There are three exceptions to the requirement that an order for the return of the child must be made if the necessary grounds are proved. This means that the Court has the discretion whether or not to order the child’s summary return to the jurisdiction of habitual residence. It is not a cast iron defence to the Defendant (the person who has removed the child or wrongfully retained the child). It is merely a discretionary release from an otherwise absolute obligation to return the child.

The three exceptions are as follows;

  • Consent – Article 13(a)
  • This is when it is established that the person who seeks the return of the child, was not actually exercising custody rights at the time of removal or retention, or had consented to or consequently acquiesced in the removal or retention.

    "Consent" refers to a consent given before the act of removal or retention. This can often be disputed between parents. The consent does not have to be approved in writing or by document. It will be a question of fact. Consent given on the basis of a misunderstanding will not count.

    "Acquiescence" is often used as a "defence". Again this is a question of fact. The burden of proving there has been acquiescence is upon the abducting parent. It is very important that you do not give the person who has removed your child any ground for saying that you have acquiesced to the removal or retention. In other words subsequently approved the removal after it took place.

    In general Hague Convention proceedings are conducted purely on paper, with written statements providing the evidence upon which the Judge decides whether or not to order a return. Therefore, generally you need not attend Court here. However, in cases where there is a dispute as to whether there has been acquiescence, or consent, the Court may want oral evidence given by you and the abducting parent and you would then have to attend Court here.

  • Grave Risk – Article 13(b)
  • Where it can be established that there is a grave risk that the return of the child would expose that child to physical or psychological harm, or otherwise place the child in an intolerable situation, the Court has the discretion not to order the return. Examples of grave risk are when it can be shown that the return of the parent with care would lead to such a serious deterioration in their condition that the effects of the deterioration on the child would put the child at grave risk of being an intolerable situation. The burden is very high. The Court will not allow a parent who has created the difficulties in returning by the initial wrongful removal or retention, to then rely upon those in preventing an order for return.

    The Court will be very reluctant to split siblings and if that is to happen by a return, that might be judged to bring the child into the category of being a grave risk.

  • Undertakings
  • In order to deal with the grave risk "defence", and to protect the child’s welfare, the Court will encourage the giving of undertakings by the applicant. Therefore, you may well be required to undertake (in other words make) a solemn promise to the English Court) to pay for the air tickets for the abductor and the child to return home. In addition you may be asked to provide financial assistance so that when the abducting parent and child return to your country, they will be able to have somewhere to live and sufficient to live on until they can obtain benefits from a government agency. In addition, you may be asked to undertake not to prosecute any criminal proceedings in respect of the abduction.

    We will discuss all undertakings with you before they are offered to the Court. However it is important that you are aware that in order to obtain the return of your child, these sort of standard undertakings will probably have to be given.

    Evidence

    As soon as we receive the statement of defence and supporting statement from the other parent, we shall forward it to you for your comments. We will need to prepare your statement in reply within probably a very short time. Therefore, the sooner you are able to provide your comments the better. In addition, you may wish to seek the assistance of a local solicitor. However, you have to be aware that you are responsible for paying their fees. We may be able to claim some of them back eventually but there are no guarantees. It will be of assistance if we can fax or e-mail you directly and please provide us with such contact details if you have them.

    In addition, we will need your comments on financial arrangements to be made for the other parent and child upon their return to your country. We may also need information from you about how your country’s Courts will deal with the arrangements for the child upon the return. We will discuss this with you in detail depending on the way your case develops.

    Timing

    The Court is under a duty to deal with these cases quickly as possible and it is hoped that there will be a hearing within six weeks at which a Judge will decide whether or not to order a return. However, frequently it is necessary for the Court to spend longer on cases, particularly those which are more complicated. Therefore, we cannot guarantee that a decision will be reached in that time. You should probably work on the basis that it could take two to three months. In any event your case will appear before a Judge every 21 days so that the Judge can consider the conduct of the proceeding.

    Access

    If you would like to see your child during the process of these proceedings, please would you discuss this with us. Whilst in the majority of the cases access (contact) does not take place during the Hague Convention proceedings, we can make an application for you if you are able to travel to the this country in order to see your child.

    To print this article, all you need is to be registered on Mondaq.com.

    Click to Login as an existing user or Register so you can print this article.

    Authors
     
    In association with
    Related Topics
     
    Related Articles
     
    Up-coming Events Search
    Tools
    Print
    Font Size:
    Translation
    Channels
    Mondaq on Twitter
     
    Register for Access and our Free Biweekly Alert for
    This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
     
    Email Address
    Company Name
    Password
    Confirm Password
    Position
    Mondaq Topics -- Select your Interests
     Accounting
     Anti-trust
     Commercial
     Compliance
     Consumer
     Criminal
     Employment
     Energy
     Environment
     Family
     Finance
     Government
     Healthcare
     Immigration
     Insolvency
     Insurance
     International
     IP
     Law Performance
     Law Practice
     Litigation
     Media & IT
     Privacy
     Real Estate
     Strategy
     Tax
     Technology
     Transport
     Wealth Mgt
    Regions
    Africa
    Asia
    Asia Pacific
    Australasia
    Canada
    Caribbean
    Europe
    European Union
    Latin America
    Middle East
    U.K.
    United States
    Worldwide Updates
    Registration (you must scroll down to set your data preferences)

    Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

    • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
    • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

    Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

    Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

    Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

    Please indicate your preference below:

    Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
    No, I do not want Mondaq to share my personal data with Contributors

    Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

    Yes, I am happy to received promotional communications from Mondaq
    No, please do not send me promotional communications from Mondaq
    Terms & Conditions

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

    Use of www.mondaq.com

    To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

    You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

    You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

    In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

    however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

    Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

    Mondaq’s Rights and Obligations

    Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

    Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

    Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

    Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

    Disclaimer

    The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

    General

    Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

    These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

    You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

    No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

    If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

    Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

    By clicking Register you state you have read and agree to our Terms and Conditions