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The Hague Convention, Child Abduction, and Defences Against That Presumption: Part 1

July 19, 2023 By Steven Bain Family Law

What is the Hague Convention?

You may have heard of the Hague before, and more specifically Hague Conventions.

The Hague is a town in the Netherlands, and is the site of various conventions between leaders of nations and heads of states, which result in treaties being entered into by those participating nations.

Originally these were to manage conflict and war, however latterly treaties have been entered into on a wide variety of topics, including matters relating to family law. This means that there are a set of rules governing international, cross-border issues which the nations signing up to that convention must adhere to.

During the build up to the summer holidays, family lawyers find themselves facing an increasing number of enquiries relating to children being taken out of the country by a parent without the express permission of the other, and the applicable Hague Convention to consider in this context is 28. Convention on the Civil Aspects of International Child Abduction (25th October 1980). It should also be noted at this point, that these conventions are only applicable to nations that have signed up to the convention.

Child Abduction

In accordance with the convention, if a child has been wrongly removed from their place of habitual residence, and retained by an individual, then this is to be classed as abduction. What often surprises clients is that a parent, who will have parental rights and responsibilities, can also commit abduction, and it is this element of the law that often comes as a surprise to parents.

The convention goes on to clarify this by stating that the removal or retention of a child is wrongful when;

a) It is in breach of rights of custody attributed to a person … under the law of the State in which the child was habitually resident before removal or retention

AND

b) At the time of removal or retention those rights were actually being exercised …

(It should be noted that the term custody is used in section a) above, however Article 4 states that the convention applies to both custody and access rights).

Scenarios of Abduction

So let’s take the scenario where Dad has residence of a child, and Mum has contact every second weekend for 3 days. That pattern has been ongoing in Scotland for over a year, and was the result of a Court action.

Suddenly during Mum’s contact, she decides to take the child abroad for a period of time to visit family. Mum and Dad don’t communicate particularly well, and she hasn’t told Dad about this plan, and simply goes ahead and takes the child.

Under the convention, this is abduction. This action is in breach of the Court order relating to where the child is to spend their time.

For this reason, if Dad was in agreement that the child could go on the holiday, we would always advise Mum in this scenario to get a letter from Dad confirming that he gives his permission for the child to leave the country for a specified period of time.

On occasion, immigration and border control in the destination country may well ask for this confirmation, or at least question the parent on the circumstances surrounding the trip, and the permissions given, and it is always a useful piece of evidence to have to hand in this eventuality.

Let’s change that scenario slightly, so using the above contact pattern awarded by the Court again, however Mum has not exercised the contact allocated to her by the Court for an extended period of months. Dad decides to go on a month long trip with the child and doesn’t seek mum’s permission. In this case, this action is preventing the attributed access the Courts have granted to Mum (“contact” in the parlance of the Scottish Courts, but a more universal term of “access” is utilised in the Convention) under point a) above, however the use of the word AND in the convention is important as both point a) and b) must be satisfied for the action to be classed as abduction.

If Mum is not exercising her access/contact then the convention is not applicable.

If Mum was exercising her contact, then once again, this would be classified as abduction at the hands of Dad, as the Convention is clear at Article 4, that it applies to both a breach of custody (Residence in Scottish terms) or access rights.

It is also important to note that when a child reaches the age of 16, the convention is no longer applicable.

The example of holidays is used above due to the time of year, however, the reality is, what is purported to be, or starts as a holiday can on occasion end up being and ongoing situation without prospect of return of the child, and that is where intervention by the Courts is often sought.

So having established in broad terms when an abduction has occurred, what is the framework whereby the parent who has removed the child can defend an accusation of abduction?

This is established under Article 13 of the Convention. This states that the member state where the child has been taken to is not bound to order the return of the child if one of two circumstances can be established;

a) The person seeking the return of the child was not actually exercising their custody rights, or had consented or acquiesced to the removal and retention.

Or

b) The return of the child would expose them to grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

There is also a provision whereby if the child has reached an age and sufficient maturity whereby it is appropriate to take account of their views, then this should be considered.

This clause can lead to ambiguity as it is open to interpretation by both the parent and also the authorities and Courts in the country where the child has been taken to.

For example, a 15 year old may be able to express their views, but in an entirely unconvincing manner and not able to attach reasons why they feel this way, or alternatively an 11 year old may be very clear on their views and be able to back up with clear examples why this is the case.

In Part 2 of this blog, we will look deeper into these Defences, and explore a recent case which looked at how the phrase “grave risk of physical or psychological harm or otherwise place the child in an intolerable situation” is interpreted by the Scottish Courts.

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