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;
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.
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.
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.
