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Now that international travel is so common, it has become relatively easy for someone leaving their partner to move to another country, taking their child with them. This has created an international problem - it is generally accepted that removing a child suddenly from its home, without reaching any sort of agreement with the parent left behind about contact or about the child’s future living arrangements, is not in the best interests of the child. In the past, even if the parent left behind could trace their child, it often proved very difficult to navigate around a foreign legal system to try to recover the child. Child abduction is the technical term for the illegal removal of a child from the child’s home, and the most common form of child abduction is abduction by a parent.

Hague Convention

Moving abroad

Definition of abduction

Application for return of child

Abduction proceedings

Defences

Court’s discretion

Non Convention countries

Hague Convention

English law on international child abduction is usually governed by the Hague Convention, an international convention designed to make sure that questions about a child’s future are decided in the country which has been the child’s home. Under the Hague Convention a child who has been abducted must almost always be sent back home. The countries which have signed the Convention have agreed that their courts will generally return an abducted child to the country it came from, without conducting a lengthy legal investigation into the merits of the case – although the courts do retain a limited discretion in certain, unusual, circumstances to allow the child to stay in the new country. In cases involving children from countries which are not party to the Convention, the English courts must act in accordance with the welfare of the individual child, and a child will only be returned to the country it originally came from if the court considers that the return is in the child’s best interests. However, the influence of the Convention has been very great in England, and English judges are likely to give great weight to the benefits to a child of returning to their home country. An English parent trying to obtain the return of a child from a country which is not a party to the Convention is likely to face substantial difficulties.

English judges are generally reluctant to allow an abducted child to remain in England and Wales, even if the circumstances of the case give them discretion to do so.

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Moving abroad

The law on abduction does not mean that a divorced or separated parent cannot move to another country with a child. The country which has been the child’s home will often grant a parent with care permission to move to another country, provided there are sensible plans in place for the child, including contact with the absent parent. It is important, however, that before a parent moves permanently to another country with their child they obtain permission from the other parent, or from the authorities. Sometimes, of course, families move abroad before separation. Where both parents have agreed that the family will be setting up home in the new country, the children will be regarded as having their new home in the new country almost straight away. Where there was no clear agreement difficult questions may arise about which country is the child’s home, which the courts may have to resolve.

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Definition of abduction

When people think about child abduction, they usually think of it in extreme terms. If a parent who has had very limited contact with the child snatches the child from the home, removes the child from the country in which the child has spent all of his or her life, and then takes the child to a strange place where he or she knows no-one, almost everyone would agree that there has been an abduction. However, most cases are much less clear cut. The Convention sets out strict rules about what is and what is not an abduction.

The Convention describes an abduction as the wrongful removal of a child from its place ‘of habitual residence’, or the wrongful ‘retention’ of a child away from its place of habitual residence, in breach of a parent’s ‘custody rights’.

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Removal or retention

Removal of a child is what most people think of when they think of abduction. A child is removed if the parent takes the child out of the home country without the permission of the other parent. If the child has left the home country with the other parent’s permission, but the child is not returned as expected, then the child has been retained by the other parent. For example, it sometimes happens that one parent and the child leave the country with permission from the parent staying at home, but while out of the country the parent with the child decides to stay abroad permanently. Another possibility is that the parent in the home country agrees that the child should visit a parent living in another country, but the parent abroad refuses to return the child at the end of the visit. Both of these situations involve retention of the child, and both may be abductions.

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Habitual residence

The question of habitual residence is not usually very difficult - a person, including a child, is habitually resident in the country in which he or she lives, even if he or she moved there only fairly recently. There are situations, however, in which the child’s habitual residence may not be clear, for example if the child was in the process of moving home from one country to another at the time of the removal, or if the family were living in a country on a temporary basis. In some of the more complicated cases, it may be impossible to identify anywhere as the child’s habitual residence, but this is rare.

The law is very clear that a child’s habitual residence cannot be changed as the result of an abduction, so the move to a new country following an abduction does not lead to the child changing habitual residence.

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Custody rights

The question of custody rights is more complicated. Custody does not necessarily involve day-to-day care of the child, but does mean more than just visits, no matter how regular or how important such visits are to the child. Custody rights involve having the right to help make decisions about the child.

Different arrangements for children and parents apply in different countries, so each case has to be considered on its own to discover whether the parent left behind had any custody rights. In England the first question asked is whether the parent had ‘parental responsibility’ or the equivalent. If they did, then under English law they had ‘custody rights’, because parental responsibility includes the right to help make decisions about the child.

Under English law all mothers and all fathers who have been married to the mother have parental responsibility for their child (unless the child has been legally adopted, in which case parental responsibility passes to the child’s adoptive parents, and is lost by the natural parents).

Unmarried fathers have to take specific action to acquire parental responsibility; they do not automatically acquire it. Unmarried fathers will have parental responsibility if they were included on the birth register, or have a written agreement in an official form with the mother, or have obtained a parental responsibility order from the court. If the mother removes the child from the country and the unmarried father has not yet acquired or applied for parental responsibility, or has been refused it, the father can only demand that the child be returned under the Hague Convention in very unusual circumstances, because, however much he sees the child or helps to support the child financially, he has no custody rights. If the unmarried father has applied to the court for parental responsibility, but the court in the home country has not yet made a decision, the unmarried father is entitled to ask thatthe foreign court return the child, so that the court in the home country can consider the father’s application for custody rights. Very unusually, an unmarried father may acquire rights of custody as a result of providing sole care to the child for a prolonged period in the mother’s absence.

Civil partners and step-parents can apply for and be granted parental responsibility orders in relation to children who are regarded as part of their family. In unusual circumstances, other people or bodies may have acquired parental responsibility, and therefore custody rights which could be breached by taking a child out of the country without first obtaining permission.

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Children

The Convention does not apply to children aged 16 or over. Even if a child was abducted when he or she was only 15, if he or she is 16 or more when the court is asked to consider the case, the Convention does not apply. However, the English court is able to order the child’s return anyway, if it considers that this would be in the child’s best interests. The strict rules of the Convention do not apply, but because of the strong influence which the principles embodied in the Convention have had on the English courts, children who have been removed to England from their home country will often be returned even if they are 16 or over.

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Application for return of child

Anyone who believes that their child has been abducted under the Convention should seek legal advice. A parent who wants the child to be returned to the home country should apply for the return of the child under the Convention as soon as possible. All the countries which have signed the Hague Convention have set up a ‘Central Authority’ to deal with such applications and all provide some form of public funding for applications for a return (so that the parent is not required to pay the legal expenses), regardless of how much money the parent has. The Central Authorities aim to help parents to find out where their children have been taken, and to do their best to arrange the return of the children. This is, of course, more difficult if the parent does not have any idea where the child has gone.

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Abduction proceedings

Abduction proceedings under the Hague Convention are supposed to be heard quickly, and generally involve only written evidence, not oral evidence. Because the majority of the countries of the European Union have signed up to an agreement known as Brussels II Revised, designed to strengthen what were seen as weaknesses or loopholes in the Hague system, most abduction cases involving another European country are now subject to very stringent time limits: no more than 6 weeks between the lodging of an application for return of the child under the Hague Convention and delivery of the judgment in the case.

When a child has been abducted, and the parent seeking the child’s return under the Convention made their application less than one year after the abduction, the court in the new country must order the return of the child unless one of the defences has been established. The rules are different if the application was made over a year after the abduction, as then the new country must return the child unless one of the defences has been established or it is demonstrated that the child is now settled in the new country. The question of settlement will be a matter for the court to decide, and the court’s approach is likely to be influenced by the reasons for the delay. The court is less likely to find that settlement has occurred if the opportunity for settlement has arisen only because the abducting parent has been concealing the child’s whereabouts. If a child has been living in a state of uncertainty and concealment, true settlement is less likely to occur. However, once physical settlement in the new country has been established the court does acquire a discretion, and may choose not to return the child if it considers that the return is not in the child’s best interests. After a long period of settlement, the court may be unwilling to order the child’s return because the return will have an unsettling and adverse effect on the child, even if that allows the abducting parent to ‘get away with’ their original unlawful action in removing the child. From the point of view of the parent seeking the child’s return, it is best to apply to the Central Authority as soon as the fact of the abduction is discovered, rather than waiting to find out what the details are.

In most European abduction cases, Brussels II Revised, the agreement signed by most European countries, has made it even more likely that return will be ordered, as it requires that the parent in the home country be given an opportunity to be heard before the court in the new country makes a decision not to return a child, and narrows the grounds on which an order refusing to return a child can be made. Perhaps even more importantly, if the child is not returned under the Convention, Brussels II Revised allows the parent in the home country to take the issue to the courts of the home country, seeking the help of their own court in obtaining the return of the child. If the court of the home country decides that the child must return, then the court of the new country must respect, and enforce, that order, notwithstanding any earlier decision not to return the child.

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Defences

If there is no delay in making the application, there are really only three arguments which an abducting parent can raise to prevent the return of the child, once the fact of the abduction has been established.

Consent or Acquiescence

The first is that there was consent or acquiescence: that is that the parent seeking the return of the child at some stage gave permission for the child to move to another country, or made it clear that he or she accepted that the child would be moving to another country. Clear and compelling evidence of the consent or acquiescence is needed, and it will not be enough to show that the parent left behind did not make much, or any, fuss when he or she found out. Something which shows genuine agreement will be needed.

Grave risk of physical or psychological harm/Intolerable situation

The second is that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In England and Wales it is very difficult to establish this defence. The court will, of course, be concerned to make sure that there is no risk to the child in returning, and may require the parent seeking thechild’s return to give undertakings, both to the English court and to the authorities in the home country, to try to eliminate any potential risk. For example the court may require the parent seeking the child’s return to give an undertaking that the child and abducting parent will be provided with separate accommodation or financial support, or to give an undertaking to stay away from both child and former partner until the hearing in the home country. The court may even contact the authorities in the home country to ask for their help in removing any potential risk to the child, but it is only in very unusual circumstances that the English court will consider that a grave risk has been proved. The terms of the European agreement, Brussels II Revised, encourage and even require cooperation between the new country and the home country to ensure that any risk to the child associated with a return is eliminated.

The abducting parent will often consider that returning to the home country will place them personally in an intolerable situation, but that is not the test; the question is whether a return would place the child in an intolerable situation. The court cannot require the abducting parent to return to the home country, but if the abducting parent decides not to return even though the child will be ordered to return, the abducting parent cannot then argue that the child will be placed in an intolerable situation because the child has to return alone. If the abducting parent has any particular concerns about a return to the home country, such as accommodation, or a fear of prosecution, then these should be mentioned to the judge, who will try to find a solution.

Child’s Objections

The court may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views. In relation to European abductions, the agreement known as Brussels II Revised places particular emphasis on hearing the views of the children, provided this is appropriate for their age and maturity. The defence remains difficult to establish, not least because the court will take into consideration the possibility that the child’s views have been strongly influenced by the adults with whom they are currently living. No matter how mature and independent the child’s views, the court will require more than a preference for staying in the new country; the child must actively object to going back, and must do so irrespective of whether the abducting parent will be returning with them or not.

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Court’s discretion

Unless there is delay of over a year and settlement has been demonstrated, or one of the defences has been established, the court has no discretion, and must order the return of the child to the home country. If settlement or one of the defences has been established, the court has a discretion to allow the child to stay, but may decline to exercise that discretion, and choose to order the return of the child in any event. If, for example, consent has been established, the court may consider that returning to the home country for a final decision in that country is, nonetheless, the best thing for the child. The court will have particular regard to: the aims of the Hague Convention; the abductor’s wrongdoing; the injustice done to the other parent; and the welfare of the child. Whatever the court’s decision, it is very difficult to challenge a decision to return the child, not least because of the weight given by the English courts to the Convention’s basic aim – that questions about a child’s future should be decided in the country which has been the child’s home.

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Non Convention countries

The English court will hear applications from residents of non Convention countries for the return of the child, and will base its decision on what it considers to be the best interests of the child, rather than on Hague Convention principles. Factors such as nationality, residence, language, race or ethnicity are relevant to the decision, as is the child’s familiarity with England and Wales. The approach of the foreign jurisdiction to the issue of child welfare could be relevant, if it was sufficiently different to the English approach, particularly if the laws being applied by the foreign court did not allow the foreign court to consider both parents as equals or meant that the foreign court would be unable to consider different views as to the individual child’s best interests. Although the courts of England and Wales have the power to order immediate return to a foreign jurisdiction without conducting a full investigation, on the basis that a swift return is in the best interests of the child, this power will not be exercised automatically in non-Convention cases and there is no ‘strong presumption’ in favour of return. Because there is no Central Authority involved, these proceedings are funded in the usual way by the parties themselves, or publicly funded if the parents are within the financial limits. Applications to return children from non Convention countries can be made, but are likely to involve the courts of both countries in complex proceedings.

ABDUCTION - HAGUE CONVENTION COUNTRIES

Contracting States Specified Territories

Argentina

Australia States and mainland territories

Austria

Bahamas

Belgium

Belarus
Belize

Bosnia and Herzegovina

Brazil
Burkina Faso

Canada Ontario

New Brunswick

British Columbia

Manitoba

Nova Scotia

Newfoundland

Prince Edward Island

Quebec

Yukon Territory

Saskatchewan

Alberta

Northwest Territories

Chile

China Hong Kong Special Administrative Region

Macau Special Administrative Region

Columbia

Croatia

Cyprus

Czech Republic

Denmark (except the Faroe Islands and Greenland)

Ecuador

Estonia
Fiji
Finland

France

Georgia

Germany

Greece

Honduras

Hungary

Iceland

Ireland

Israel

Italy

Latvia
Luxembourg

Macedonia

Malta

Mauritius

Mexico

Monaco

Netherlands European Territories

New Zealand

Norway

Panama

Peru
Poland

Portugal

Romania

Serbia and Montenegro
Slovakia

Slovenia
South Africa

Spain

St Kitts and Nevis

Sweden

Switzerland

Turkey

Turkmenistan

United Kingdom including:
Isle of Man
Cayman Islands
Falkland Islands
Montserrat
Bermuda

United States of America

Uruguay
Uzbekistan
Venezuela

Zimbabwe