Legal Overview

The Hague Convention on the Civil Aspects of International Child Abduction 1980 is an international treaty with 101 signatories worldwide (as of May 2022).

The rationale behind the Hague Abduction Convention appears to be twofold.

Firstly, by establishing a remedy of immediate return, the child will be promptly reintegrated to their habitual environment and their ‘status quo ante’ will be restored as quickly and effectively as possible with maximum co-operation between Contracting States. This is especially so if the taking parent is the child’s non-custodial parent, usually the father; it is on this presumption that the Hague Abduction Convention, and the remedy of immediate return, was based. Allowing the court of the child’s habitual residence to decide what is in the best interests of a child was deemed to be the most effective way of protecting child welfare overall.

Secondly, respecting custody arrangements made in other Contracting States would prevent the abducting parent from ‘forum shopping’, a term used to describe a situation where one parent abducts their child in order to find a more favourable forum to adjudicate the substantive custody dispute. This in turn legalised their circumstances in the country to which they have fled, which could consequently make it difficult for the left-behind parent to secure the return of the child.

It has to be said that the Hague Abduction Convention has been an extremely successful instrument at fulfilling its objective of reuniting parents and children in Contracting States by promptly returning children back to their habitual residence.

It is worth pointing out that, if a return order is made, it is for the child; the parent is not legally obligated to return with her child.

Exceptions to the duty to return

Article 12: The ‘Well-Settled’ Defence

Article 12 states that the petitioner must make an application for the return of the child within a year of the unlawful removal or retention. The argument is that, after that time, a child will then be too well settled in their new environment for it to be beneficial for them to be moved yet again.

However, an application may still be accepted if the abducting parent has made excuses to delay the application for more than a year. Nonetheless, if an application is made to the court for the return of a child after a year has passed, the judge still has discretion as to whether to order the return, even if the ‘abducting’ parent has not done anything underhanded to delay the return.

Article 13: Child’s Objections

Article 13 makes it clear that the child’s objections to being returned may be taken into account depending on their age and maturity.

Again, this is a very difficult argument to uphold as a child refusing to return is often met by hostility in the courts who are encouraged to believe that the ‘abducting’ parent has attempted to alienate the child from the other parent.

Article 13a: Custody Rights or Acquiescence

Article 13a makes it clear that an application can only be made by a person who was exercising custody rights at the time of the unlawful removal or retention, and that they must not have acquiesced to the removal. This defence goes hand in hand with primary carer custody rights, which draws a distinction between the custodial parent and the parent who is exercising access rights.

The Hague Abduction Convention made a legal assumption that custody and access rights could easily be separated. At the time this was true; custody was more often than not awarded to the mother. However, since then, custody arrangements have changed. In England and Wales for example, unmarried fathers can more easily acquire parental responsibility. The impact of this is that custody rights given by the court in one Contracting State will not stop a Hague case been filed against the custodial parent who has taken her child across borders, unless that court order has a leave to remove or similar, order in place.

Article 13b: Grave Risk of Harm or Intolerable Situation

Article 13b states that a return order does not have to be made if to do so would cause the child to suffer from grave psychological or physical harm, or would place them in an intolerable situation. It is this defence that is most often used by women who ‘abduct’ their children whilst attempting to flee domestic abuse.

However, this defence is notoriously hard to prove: the bar as to what constitutes ‘grave harm’ has been set very high by the courts who will rarely find that the risk of harm is severe enough to refuse the return of the child. Witnessing domestic abuse will most certainly not suffice, despite the fact that many jurisdictions, including England and Wales, now consider children who witness domestic abuse as victims in their own right.

Furthermore, even if the risk of domestic violence towards the mother is acknowledged, courts will argue that the requesting State can offer sufficient protection for women and children upon their return, by way of so-called ‘mirror orders’.

Article 20: Human Rights

The exception set out in Article 20 allows the requested State to argue that a child does not have to be returned if they believe that to do so would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

This exception is rarely pleaded for political reasons – Hague signatories are loath to appear to be critical of the human rights provisions of other jurisdictions – a significant problem in Hague Abduction case judgments.

What Needs to Change?

There are many – including many on the Hague Mothers’ team – who argue that the Convention is beyond saving. That it is used by perpetrators, emboldened by judicial and state support, as a way to extend their control over their children and ex-partners. Evidence for this view is not hard to find, although the 25% of cases brought by mothers against abducting fathers do provide a counterpoint: when it works as originally intended, the Hague Convention is highly effective in returning children to the safety of their primary carers – invariably mothers.

Either way, given that over 100 countries are signed up to the Hague, it is unlikely that it can simply be expunged. On that basis, we’ve written a ‘What Needs to Change’ position paper which begins with a consideration of what could change within the Convention itself in order to safeguard mothers and children. In descending order of complexity, we then consider Convention protocols and changes to its implementation in contracting states. We also call for stronger guidance in relation to Article 13(1)(b); improved practice direction for Hague courts; and equality of arms through legal aid provision for taking mothers.