The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
The Convention was founded on the 25th October 1980 and entered into force between the signatories on 1 December 1983. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.
The primary intention of the Convention is to preserve the status of the child custody arrangement that existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.
The Convention does not alter any substantive rights. The Convention requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member country rather than specifically to the left-behind parent.
The Convention requires the return of a child (Or Children) who was (Were) a “habitual resident” in a contracting party immediately before an action that constitutes a breach of custody or access rights. The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.
Wrongful retention or removal
The Convention provides that the retention or removal of a child is “wrongful” whenever:
“a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
“b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.
“From the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise.”
The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.
Rules of Evidence
The Convention provides special rules for admission and consideration of evidence independent of the evidentiary standards set by any member nation. Article 30 provides that the Application for Assistance, as well as any documents attached to that application or submitted to or by the Central Authority are admissible in any proceeding for a child’s return. The Convention also provides that no member nation can require any legalisation of the underlying documents in context of a Convention proceeding. Furthermore, the court in which a Convention action is proceeding shall “take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable” when determining whether there is a wrongful removal or retention under the Convention.
Limited defence to return
The Convention limits the defences available against the return of a wrongfully removed or retained child. To defend against the return of the child, the defendant must establish to the degree required by the applicable standard of proof (generally determined by the lex fori, i.e. (the law of the state where the court is located):
(a) that Petitioner was not “actually exercising custody rights at the time of the removal or retention” under Article 13; or
(b) that Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or
(c) that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or
(d) that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or
(e) that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b); or
- that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.