Disputes over child arrangements or access are among the most common causes of ongoing tension between couples after they separate.

Most families manage to work out reasonable compromises over issues such as where the children should live, how much time they should spend with each parent, access at weekends and taking holidays etc.

Unfortunately, such 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 thankfully, 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 one parent or the other should have custody. 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 such everyday things 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.

Right of Custody

The other main issue the courts will consider is who has right of custody. This will usually be the parent who was granted custody by the courts in their home country. If court proceedings are taking place at the time of the abduction and no order has yet been made, right of custody will reside in the court hearing the case. If the foreign court decides that the child was taken unlawfully, then it will order that it should be returned to the country of habitual residence and that any further legal disputes should be heard by the courts there.

When the courts will not order a return

There are very few defences an abducting parent can use and even they are limited in scope. However, the courts can decline to order that a child should be returned if the parent with custodial rights agreed to the removal either before or afterwards.

If more than a year has passed since the abduction and the child has become happy and settled in the new country, the courts may also decline to order a return.

The courts 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 courts will take the child’s views into account depending on its 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.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at [email protected] or using the form below.

The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.