Hague Convention on the Civil Aspects of International Child Abduction

The primary intention of the convention is to preserve whatever status quo child custody arrangement 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.

As 2022, there are 103 parties to the convention; Botswana and Cape Verde being the last countries to accede, in 2022.[4]

The Convention does not alter any substantive rights of that of the parent or the child. 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 the country in which that dispute should be adjudicated. 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 who was a "habitual resident" in a contracting party immediately before an action that constitutes a breach of custody or access rights.[5] 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 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.[6]

The Convention provides that the removal or retention 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.[7] The explanatory report of the convention clarifies what wrongful is in this meaning:

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.[8]

The developing international jurisprudence on the application of the convention is beginning to place less emphasis on the intention of the parents in determining whether wrongful removal or retention of the child has occurred.[9] For instance, in the 2018 Supreme Court of Canada's decision of the Office of the Children's Lawyer v. Balev, the Supreme Court held that a presiding judge should consider all relevant considerations in deciding whether child abduction has occurred, and parental intention or agreement is but one of the many factors to consider.[9][10] The same approach was taken by the European Union where the Fifth Chamber held in O.L. v. P.Q. (2017) C‑111/17 that the intention of the parents by itself cannot, as a general rule, be crucial to the determination of the habitual residence of a child.[11] This position is also shared by the jurisprudence of U.K.,[12] Australia[13] and New Zealand.[14] The approach in the U.S. on the role that parental intention play in the determination of whether child abduction has occurred is divided.[15]

The implication of this approach is that a child's habitual residence could change while staying with one parent in a different jurisdiction notwithstanding and despite any agreement between the parents as to the child's habitual residence.[16]

The determination of a child's place of habitual residence is key to an application for return of the child under the convention.[17] The application can succeed only if a child was, immediately before the alleged removal or retention, habitually resident in the Member State to which return is sought.[17]

The Convention does not define the term "habitual residence", but it is not intended to be a technical term.[18]

The jurisprudence of the EU holds that the 'habitual residence' of a child is a place where the child has some degree of integration in a social and family environment.[19] The deciding court must take into account all circumstances specific to each individual case.[19] To constitute habitual residence, the child must be physically present at that place and that presence cannot be temporary or intermittent.[20] Other factors relevant to the determination of habitual residence include the duration, regularity, conditions and reasons for the child's stay on the territory of a Member State and the child's nationality.[21]

A similar approach, known as the "hybrid approach" was adopted in Canada following the landmark decision of Office of the Children's Lawyer v. Balev.[22] Under the hybrid approach, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. In particular, the application judge determines the focal point of the child's life which is the family and social environment in which its life has developed, immediately prior to the removal or retention.[23] The judge considers all relevant links and circumstances – the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B.[24]

There is jurisprudence in the U.S. which continues to treat shared parental intent as a decisive factor in the determination of a child's habitual residence. Under this analysis, 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.[25]

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.[26] The convention also provides that no member nation can require legalization or other similar formality of the underlying documents in context of a Convention proceeding.[27] Furthermore, the court in which a Convention action is proceeding "may take notice directly of the law of, and of judicial or administrative decisions, formally recognized 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.[28]

The Convention limits the defenses against 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 3; 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, and the child has "settled in its new environment", under Article 12;

(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

(f) that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.

The best interests of the child plays a limited role in deciding an application made under the convention. In X v. Latvia,[29] a Grand Chamber of the European Court of Human Rights decision noted by the 2017 Special Commission on the Practical Operation of the convention, the court stated that "the concept of the best interests of the child must be evaluated in light of the exceptions provided for by the Convention, which concerns the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a 'grave risk' (Article 13 (b)), and compliance with the fundamental principles of the requested State on the protection of human rights and fundamental freedoms (Article 20)."[30]

Signature and ratification of Japan in 2014

As of November 2022, there are 103 parties to the Convention.[4] The last states to accede to the convention were Botswana and Cape Verde in 2022.[4]

• International child abduction
• Child abduction
• Child laundering
• Child harvesting
• List of international adoption scandals
• Hague Adoption Convention
• Hague Abduction Convention Compliance Reports (US)
• International Child Abduction Remedies Act (US)
• Hague Conference on Private International Law

Wikimedia Commons has media related to Hague Abduction Convention.

• Full Text of the Convention
• Explanatory Report by Elisa Perez-Vera
• INCADAT – Case-law database of different jurisdictions concerning the 1980 Hague Child Abduction Convention
• US State Department International – Parental Child Abduction – Compliance Report 2011
• Contracting States
• The Child Abduction Section of the Hague Conference website
• Hague Conference Guides to good practice
• The Hague Domestic Violence Project International Child Abduction and Domestic Violence
• Multiple perspectives on the implications of the Hague Convention
• How Hague Convention Cases are tried in the USA ?