Child Abduction Proceedings and Defences under the 1980 Hague Convention (2 August 2024)

When a child has been abducted, the 1980 Hague Convention on International Child Abduction can facilitate the swift return of the child between countries who are signatories. This powerful international agreement offers a lifeline to desperate parents, though the chances for contesting an immediate return are narrowly defined and rigorously enforced.

Under section 1 of the Child Abduction Act 1984, it is a criminal offence for a “connected person” (e.g. their parent or guardian) to take a child out of the UK without the “appropriate consent”. Appropriate consent means the consent of each person with caring responsibilities for the child (e.g. their parent or special guardian).

Central Authorities and the Hague Convention

The Hague Convention of 25 October 1980 aims to tackle parental child abduction by fostering cooperation between Central Authorities and providing a quick process for returning the child to their country of habitual residence. Each signatory country has an appointed Central Authority that serves as the point of contact in cases of child abduction.

Central Authorities assist applicants by assigning solicitors from a panel held by the International Child Abduction and Contact Unit (ICACU). These solicitors help locate the child and work towards a voluntary return or an amicable resolution. They also help prevent further harm to the child by initiating legal proceedings for the child's return and making necessary administrative arrangements to ensure the child's safe return.

When the Hague Convention can be applied

According to Article 12 of the Convention, if a child has been wrongfully removed or retained, the authorities must “order the return of the child forthwith” if less than one year has passed since the wrongful removal or retention when proceedings begin in the state where the child is located. Even if more than one year has passed, the authorities should still order the child's return unless it is proven that the child is now settled in their new environment.

Under article 12 of the Convention, where a child has been wrongly removed or retained, the authority concerned should still “order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

Defences against an immediate return

Article 13 of the Convention outlines specific exceptions to the immediate return of an abducted child. These defences are narrowly interpreted by the English Court and include:

1. Consent – Article 13 (a): The removing parent must prove that the left-behind parent had consented to the child's removal.
2. Acquiescence – Article 13 (a): If the left-behind parent has acquiesced, or agreed, to the child's continued presence in the new jurisdiction. This is determined by the parent's actual state of mind and actions, assessed by the trial judge.
3. Child’s objection – Article 13:  where a child objects to a return, and has attained an age and degree of maturity at which, it is appropriate for the court to take account of their views. 
4. Grave Risk of Harm/Intolerability – Article 13 (b):  If returning the child would expose them to physical or psychological harm or place them in an intolerable situation. The court will consider protective measures to ensure the child's safety.
5. Settlement: If the child has been in the new state for more than 12 months before Hague Convention proceedings begin, it can be argued that the child is settled and should not be returned. This defence is only applicable if proceedings are initiated more than 12 months after the abduction.

If one or more of the above is satisfied, the court does not necessarily need to return a child to the home country and this will be determined on a case by case basis.

Duncan Lewis Solicitors can advise you in relation to your children law cases. We are committed to the welfare of children and wholeheartedly endorse such transformative programmes. Duncan Lewis’ team includes Advanced Members of the Law Society’s Family Panel, and members of the Law Society Children Panel.

For expert legal advice on all family and childcare matters, contact Duncan Lewis Solicitors on 033 3772 0409.

About the author:

Rabia Khan is a Family trainee solicitor at Duncan Lewis Solicitors Birmingham office. She works closely with Director Julie McNamara and supervising Solicitor Jaspreet Rai, as well as a team of solicitors and caseworkers. Rabia has experience in a wide variety of complex cases and is always willing to act tirelessly and efficiently to ensure that she provides the best service to clients who are in need.

For advice in respect of a family law matter contact her via email at Rabiak@duncanlewis.com  by telephone at 0203 114 1285.

Duncan Lewis Solicitors

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