The 1980 Hague Convention is an agreement between various countries which aims to ensure the return of an abducted child to the country where they are habitually resident, so that issues about where they live in the future, and with whom they spend time with, can be decided by the Courts of that country. As at 3 April 2024, of the 103 countries who are Contracting Parties to the 1980 Hague Convention, 31 have ratified with the UK.
Many children have parents of different nationalities or who are connected to different countries. If the parent relationship breaks down, one parent may decide to move their child to another country without the other parents’ permission. This is child abduction.
Child abduction can occur in two ways. The first is a wrongful removal. This is where a child is removed from the country and taken abroad without permission from any one person/institution i.e. local authority in care proceedings, with parental responsibility for that child. A wrongful removal is often referred to in different terms in different countries i.e. in America it can be referred to as child kidnapping. The second is wrongful retention. This is where a child is kept in a foreign country after an overseas trip without permission from any one person/institution i.e. local authority in care proceedings with parental responsibility for that child.
As well as the abduction being unlawful, it could also lead to a criminal sanction.
If your child has been abducted and brought to the jurisdiction of England and Wales, you must notify The International Child Abduction Central Unit (ICACU). ICACU will then provide you with a funding letter, so that once you seek legal representation from a specialist solicitor, Legal Aid can be obtained (which is non-means and non-merits tested). Proceedings can then be issued at the High Court in London.
The Court needs to establish where the child is habitually resident, and its initial position is that a child should be returned to the country which they were living. However, there are various defences which the abductor may seek to rely on.
Consent – Article 13(a)
This is where the left behind parent consented to the child’s removal or retention in another country.
Acquiescence – Article 13(a)
This is where the left behind parent indicated by their words and/or actions, after the abduction, that they did not seek the return of the child.
Child’s Objections – Article 13
This is where the child objects to being returned and has attained an age and degree of maturity at which it would be appropriate to consider their views. However, it must be shown that their views have not be influenced by the abducting parent.
Grave Risk of Harm/Intolerability – Article 13(b)
This is where, if the abductor were to return the child to its country of habitual residence, there would be a grave risk that the child would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation.
Settlement
If a child has been removed from a country for 12 months or more, it is arguable that the child has become settled within the new country and therefore should not be returned. This defence can only be used if the child has been in the new country for 12 months or more before Hague Convention proceedings have been issued.
If one of the above defences can be made out, the Court will then consider on a discretionary basis whether or not it is right for the child to be returned to the left behind country. However, if the defences are not made out, then an Order for the summary return of the child shall be made. It will then be for the country to which the child is returned, to determine the living and spend time with arrangements for that child.
If you have a child/children who could be the subject of this type of urgent High Court proceeding in the jurisdiction of England and Wales, or you are already within proceedings, please contact our specialist solicitors Mr Simon Craddock or Miss Poppy Harber.
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