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The United Kingdom and over 80 countries have both signed and ratified an international treaty called the Convention on the Civil Aspects of International Child Abduction, concluded on 25 October 1980 (colloquially known as the ‘Hague Convention'). The purpose of the Convention was to ensure the prompt return of children who had been either abducted from their country of habitual residence or wrongfully retained in another contracting state. The Hague Convention works on the principle of returning children aged under 16 years who are wrongfully removed or retained away from their country of habitual residence. The child's nationality is not relevant in these proceedings, the key is the child's country of habitual residence and one parent cannot unilaterally change a child's place of habitual residence when the law of the child's habitual residence requires such decisions to be made jointly by both parents. At the time that the Convention was drafted it was felt that parents were taking the law in to their own hands and moving their children around the globe with little regard for whether they had the permission of the other parent to do so. Statistics show that most abducting parents are Mothers.
Article 1(a) of the Hague Convention states that its object is ‘to secure the prompt return of children wrongfully removed or retained in any Contracting State'. The Hague Convention encourages the speedy disposal of applications. Article 2 says that contracting states must use ‘the most expeditious procedures available' and Article 11 widens this requirement to ‘Judicial or administrative authorities of Contracting States' and states that if a decision has not been reached within 6 weeks from the commencement of proceedings then the Applicant or either of the Central Authorities may request a statement of the reasons for the delay.
The Courts of England and Wales take their obligations under the Convention very seriously and have a good record for adhering to the Convention and returning children when required.
Ideally parents bring their application very speedily ie shortly after their child has been either abducted or wrongfully retained. Parents are sometimes ignorant of their rights under the Hague Convention and only bring an application once they have received specialist assistance which is sometimes a long time after the actual wrongful event took place.
Civil child abduction proceedings brought under the Hague Convention are highly specialist proceedings which, unlike domestic children proceedings, are not designed to consider the child's long term best interests/welfare. Child abduction proceedings are wholly different from domestic children proceedings. Essentially the only function of Hague Convention proceedings is to consider the appropriate forum to consider the child's welfare. Hague Convention proceedings are proceedings to decide jurisdiction. The Court does not consider, for example, who is the better parent, who the child should live with or anything of that nature as those are decisions that the Court that is found to have jurisdiction will determine. As a result, the Court has a narrow issue to decide and some things will simply not be relevant to the child abduction proceedings.
Most contested child abduction cases, probably about 90%, result in the English Court making an Order for the child's return to the country from which they have been removed or retained. The Court is obliged to order a return if the elements of abduction are established and a defence is not made out. In order to make an application for a child's return under the Hague Convention, the parent must have rights of custody ie the right to veto the child's removal/retention. In England and Wales a parent will have rights of custody if they have Parental Responsibility (‘PR') for the child. A Mother automatically has PR. A Father has or will acquire PR if (a) he is married to the Mother (at the time of the birth or subsequently); (b) the child is born after 1 December 2003 and the Father attends with the Mother to register the child's birth and he is named on the child's birth certificate as the Father; or (c) he and the mother make an agreement providing him with PR for the child; or (d) the Court, on the Father's application, orders that he should have PR for the child. A parent exercises rights of custody by exercising PR, ie by being involved in the important decisions in relation to the child.
The threshold for successfully defending a child abduction application is extremely high and most cases do not meet the standard of proof required.
There are very limited defences to a Hague Convention application and they are construed narrowly by the English Court. They can be summarised as follows:
1. Consent - Article 13(a) - it is possible to defend a Hague Convention application if you are able to show that the left behind parent consented to the child's removal to or retention in another country.
2. Acquiescence - Article 13(a) - it is possible to defend a Hague Convention application if you are able to show that the left behind parent subsequently acquiesced in the removal or retention - that is to say that the Applicant indicated by his/her words and/or actions after the wrongful event of that he/she did not seek to secure the child's summary return. Acquiescence in Article 13 means looking at the subjective state of mind of the wronged parent and asking has he/she in fact consented to the continued presence of the child in the jurisdiction to which they have been abducted.
3. Child's objections - Article 13 - it is possible to seek to defend a Hague Convention application if the subject child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the subject child's views. For this defence to be established, it is important for the Court to satisfy itself that the child has not been influenced by the abducting parent about their views.
4. Intolerability - Article 13(b) - it is possible to raise a defence to a Hague Convention application if you are able to demonstrate that if you were to return a child to its state of habitual residence there would be a grave risk that the child would be exposed to physical or psychological harm or the child would otherwise be placed in an intolerable situation.
5. Settlement - once a child has been removed to or been retained in another contracting state for more than 12 months, it is possible to argue that the child has become settled within the new state and therefore should not be returned. This defence can only be used if the child has been in the country in which they were removed or retained, for more than 12 months before the Hague Convention proceedings were issued. This defence cannot be used if the proceedings are issued within 12 months of the abduction.
The most commonly raised defence is Article 13(b)/intolerability defence but in the vast majority of cases the defence can be ameliorated by the left behind parent providing what is classed as a ‘safe haven' return package (protective measures) ie most of the things that parents consider intolerable about returning to the country of habitual residence can be ameliorated with the provision of appropriate housing, funding and other practical assistance by the left behind parent or contracting state until such time as things can be properly considered by the Courts of the child's habitual residence.
Mandeep Gill is an Associate solicitor at The International Family Law Group LLP in Covent Garden, London, (www.iflg.uk.com). Her particular specialism is in complex international children cases. Mandeep can be contacted on Mandeep.firstname.lastname@example.org.
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