By Laura Ousby Solicitor
Disputes between parents over who their children should live and spend time with are among the most common causes of ongoing tension between couples after they separate.
Most families manage to work out reasonable compromises over such issues but unfortunately, amicable agreements are not always possible and in some extreme cases, can lead to one parent abducting their children and taking them to another country. This presents huge problems for the parent left behind but help is available in the form of an international treaty.
What is the Hague Convention?
The Hague Convention, or to give it its full title, the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, is an agreement between approximately 100 countries across the world. It “seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return”.
How does the Convention work?
The Convention enables parents to take legal action by seeking redress in the country to which their abducted child has been taken. However, the courts in these countries will not consider which parent is right or wrong, or whether the child should live with one parent or the other. They will normally restrict themselves to only considering which country’s legal system should deal with the case. That will usually be where the child is considered to have “habitual residence”.
What is habitual residence?
The Convention doesn’t give a specific definition of habitual residence but it is generally interpreted in common sense terms such as where the children would consider home, based on everyday things such as how long they have lived there, where they go to school and feel settled, and the relationships they have made with family and friends.
It is not usually possible for a parent to claim that the country to which an abducted child was taken has subsequently become the place of habitual residence.
Who should the child live with?
The other main issue the court will consider is who the child should live with. This will usually be the parent who obtained an order from the court in their home country stating that the child live with them. If court proceedings are taking place at the time of the abduction and no order has yet been made, the decision as to who the child should live with will remain to be made by the court hearing the case. If the foreign court decides that the child was taken unlawfully, then it will order that the child should be returned to the country of habitual residence and that any further legal disputes should be heard by the court there.
When the court will not order a return
There are very few defences an abducting parent can use and even they are limited in scope. However, the court can decline to order that a child should be returned if the other parent agrees to the removal.
If more than a year has passed since the abduction and the child has become happy and settled in the new country, the court may also decline to order a return.
The court will also refuse to send a child back if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
Does the child have a say?
The court will take the child’s views into account depending on the child’s age and maturity. However, this usually only applies to the child’s views on the country rather than their views on the parents, which is normally outside the remit of the court.
The Hague Convention is a treaty that you may hope you never have to use, but if the need ever does arise, it can be very helpful. However, parents need to act fast and seek legal advice immediately to ensure their child is returned as quickly as possible, and certainly before a year passes as the issues are then likely to become far more complicated.