HOW DOES THE 1980 HAGUE CONVENTION WORK?
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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”).
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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.
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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 irrelevant; the key is the child’s country of habitual residence which is usually the child’s home prior to the wrongful removal or retention.
HOW DO HAGUE CONVENTION PROCEEDINGS WORK IN ENGLAND AND WALES?
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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 i.e. shortly after their child has been either wrongfully removed 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.
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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. 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.
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Most contested child abduction cases 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 the child’s return if the elements of abduction are established and an exception to the usual rule about a return is not made out.
WHO CAN SEEK A CHILD’S RETURN UNDER THE 1980 HAGUE CONVENTION?
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In order to make an application for a child’s return under the Hague Convention, the applicant must have rights of custody i.e the right to veto the child’s removal/retention.
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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
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(a) he is married to the Mother (at the time of the birth or subsequently),
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(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
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(c) he and the mother make an agreement providing him with PR for the child
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(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, i.e by being involved in the important decisions in relation to the child.
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