The Hague Convention

Author:Ms Tanya Roberts
Profession:Charles Russell LLP
 
FREE EXCERPT

The Purpose

In the interest of children, parents and others should not abduct them from one jurisdiction to another. Decisions relating to the custody (residence) of the children are best decided in the jurisdiction of their habitual residence. The UK ratified and implemented the two international conventions, the Convention on the Civil Aspects of International Child Abduction (which we call "the Hague Convention") and the European Convention of Recognition and Enforcement of Decisions concerning Custody of Children (which we call "the European Convention") by the bringing into force of Child Abduction and Custody Act 1985 in 1986.

Most countries in the world have not ratified either convention but currently 38 states and territories have ratified the convention and a further 38 states have acceded to it. The terms of the conventions do not apply to a child who has been taken to non-Hague Convention or European Convention countries. The difference between the Hague Convention and the European Convention is that the Hague Convention seeks to protect "rights of custody", whereas the European Convention seeks to facilitate the recognition and enforcement of decisions relating to custody or access (contact).

Therefore for an application to be made under the Hague Convention, there does not necessarily have to be a court order concerning the custody of the child in the first place.

The aim is to return a child who has been wrongfully removed or retained as quickly as possible. The Hague Convention proceedings do not consider the long term merits of where the child should live or with whom but seek to secure the prompt return of the child to the appropriate jurisdiction, for that jurisdiction to decide.

Application

The Hague Convention applies where a child is under the age of 16 years and was habitually resident in one contracting state immediately before the removal or wrongful retention in the other contracting state, in breach of rights of custody of the Applicant.

Habitual Residence

This should be understood according to the ordinary and natural meaning of the word. It is similar to "ordinary residence". In many cases there is a dispute as to whether a child has been habitually resident in the contracting country (the country from which the child has been removed) prior to the removal. It is a question of fact to be decided after consideration of all the circumstances of a particular case. If habitual residence is in dispute, the burden of proving that the child's habitual residence had changed prior to the removal is upon the person who seeks to prove that, i.e the person who removed the child.

One parent is not allowed to unilaterally change a child's habitual residence without the agreement of the other parent, unless independent circumstances have arisen pointing to a change. However, the situation can be...

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