International Child Abduction

International Child Abduction

You can ask our solicitors for advice on international child abduction using the question box on the front of our website or the following article may answer your questions. 

When it comes to dealing with a serious situation such as  international child abduction, there are three main provisions that exist to ensure the prompt and safe return of an abducted child when they are taken out of the country. When discussing international child abduction in this sense, it is often instigated by a parent or relative of the child and can sometimes occur when there is a dispute over custody of a child.

international child abduction

The three main provisions that deal with international child abduction include:

  • The Hague Convention,
  • Brussels P Regulations
  • European Convention

This article will however discuss the provisions outlined in the Hague Convention.

The Hague Convention consists of 80 states which are bound by the rules of this convention. Countries who are members of this convention include the United Kingdom, the USA, New Zealand and Australia as well as many European countries and some African States including South Africa.

Objectives

The Hague Convention has a number of objectives but the main focus of the convention is to enable the safe and secure return of children while respecting their rights. Under Article 12 of the Convention, a series of remedies are outlined which state what happens when there is a breach of rights in terms of custody.

When an application is made to return a child from one of the states who are members of the Hague Convention, the Court are encouraged not to base their decision on the merits of the case, or indeed using any case law, background knowledge that they have or previous dealings with the family.

Their decision should be based solely on whether or not the child ought to be returned to their usual country of residence. This approach is taken by the convention because it is believed that it is often in the child’s best interests for them to be returned to their home country and this should be completed as quickly as possible.

If the decision on the other hand was based on the merits of the case this would prove not only complex, but lengthy, delaying the process unnecessarily.  Under Article 13, there are limited grounds when the Hague Convention can refuse to allow the child to return to their home country.

In this case, it would be up to the home state (the country where the child normally resides) to determine the outcome of the case, but looking specifically at the situation and evaluating the merits of the case.

Article 4

The Hague Convention will apply in a number of situations. Article 4 states that the convention is applicable to any child who is under the age of 16 years and they are habitually living in one of the contracting states. This child must have been wrongfully taken out of the country or retained in another country. Wrongful removal in this sense will occur if the retention or removal of the child is found to breach custody rights.

If a parent would like the child to be returned, they will need to submit an application. Once submitted, Article 12 of the Convention will come into force. Under this Article, the court will be instructed provided that the application has been made within a year of the child being removed from the country. If the length of time is greater than one year, the court can still order that the child is returned.

However, this may prove more difficult if it can be established that the child has settled in to their new environment.

There are many reasons within the Convention when the court may not instruct that a child is returned to their home country. More specifically, the following will apply:

Article 12 – Return of the child may be refused if the application was submitted more than a year after the child was taken from the country and they are now settled into their new life

Article 13a – The application may be refused if the individual who has custody of the child was not actually exercising their rights such as parental responsibility at the time that the child was taken out of the country

It may be decided that the child does not have to be returned if the applicant provided consent to their removal or they have since accepted the child’s removal

Article 13b – Return of the child can also be declined if there is a significant risk to the child if they return in terms of physical or psychological harm.

Sometimes the child themselves may object to being returned to their home country and this will be taken into consideration if the child is of the right age and maturity to understand the decision that they are making.

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