Key takeaways
Purpose of the Hague Convention
Ensures prompt return and correct jurisdiction for child decisions.
Habitual residence is key factor
Courts assess where the child is most settled and integrated.
Limited defences to return
Return can be refused only in narrow, evidence-based circumstances.
This blog forms part of our series on international child abduction and explains how cross-border cases are resolved. Read the first part of the series here: What is international child abduction? A guide for parents | Hill Dickinson
When a child is taken to another country without permission, or not returned after an agreed visit, it can be an extremely distressing experience. In these situations, international law provides a framework to resolve matters quickly and it is imperative to have the right team of professionals to guide and support you.
The Hague Convention
Many countries, including the UK, are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. There are now over 100 participating countries worldwide.
The Convention aims to:
secure the prompt return of children wrongfully removed or retained
reduce disruption to the child’s life
ensure decisions about the child’s future are made in the correct country.
Importantly, the Convention does not decide where a child should live long-term. Instead, it determines which country’s courts should make those decisions. This helps prevent parents from attempting to gain an advantage by moving a child to another jurisdiction.
Habitual residence and settlement
The court will first consider the child’s habitual residence, which is a factual assessment based on:
where the child lives
where they attend school
their family and social connections
the overall stability of their environment.
Habitual residence is not a strict legal formula but a question of fact – a child’s habitual residence can change if a child becomes integrated into a new country.
Where proceedings are started after 12 months, the court may also consider whether the child is ’settled’ in their new environment. This involves assessing both physical and emotional integration.
Defences to return
There are limited circumstances in which a court may refuse to return a child, and in some situations, parents will have removed their children out of fear and for safety.
Grave risk of harm (Article 13(b))
Return may be refused if there is a serious risk of physical or psychological harm or an intolerable situation. Compelling evidence will be required. The Court may still order return if protective measures are available. Examples of protective measures include:
restraining orders
supervised contact arrangements
housing support
undertakings
financial support
Child’s objections
If a child is of sufficient age and maturity and objects to returning, the court may take their views into account, considering the following:
the child’s age and understanding
whether the objection is influenced
the strength and reasoning behind the objection
whether the objection relates to a country (not simply a parent)
Where appropriate, the Court may speak directly to (older) children, or Cafcass might be instructed to report.
Human rights considerations (Article 20)
Rarely used, this applies where return would breach fundamental principles of human rights.
Timescales
The Convention encourages cases to be resolved within six weeks. In practice, many cases take between three to six months, and more complex cases may take longer. Where cases are more complex (for example there are allegations of domestic abuse, psychological assessment or requires expert evidence on laws in the relevant countries) the proceedings can take longer. Delay can sometimes increase the risk of a child being deemed settled in their new environment, potentially creating an additional defence.
Non-Hague Convention countries
If the country is not a signatory, the Hague Convention does not apply. In such cases, the English High Court may rely on its inherent jurisdiction to make decisions based on the child’s welfare. The Inherent Jurisdiction is the High Court’s natural authority to act in a child’s best interests when there is no specific law or procedure that deals with the problem. These cases are typically slower and more complex.
Legal advice and support
Given the urgency and complexity of these cases, early specialist legal advice is essential.
Parents may also wish to contact Reunite International for support and guidance.
How our Family Team can support
If you require advice or assistance, you can learn more about our Family and Relationships team here, or contact us to discuss how we can help.
