What are the defences to a child abduction application: 1980 Hague Convention?
Defences to a child abduction return application under the 1980 Hague Convention are limited and interpreted in a restrictive manner.
The defences provide grounds for a court to refuse to order the return of a child to their country of habitual residence despite the general presumption in favour of a return. The most common defences include:
Grave Risk of Harm (Article 13(b))
If returning the child to their habitual residence would expose them to physical or psychological harm or otherwise place them in an intolerable situation, the court may refuse to order their return. This defence is often invoked in cases involving domestic violence, abuse, or neglect. However, in the majority of cases, this defence can be challenged by the left behind parent by evidencing that they can offer suitable protective measures (i.e. provision of housing, funding and assistance from the left behind state to afford the Child protection), until such time as the case can be properly considered by the Court of the Child’s habitual residence. The Court’s focus is to ensure the Child is safe and has a soft landing.
Child’s Objections (Article 13)
If the child has reached an age and maturity where their views can be taken into account, and they object to being returned to their habitual residence, the court may consider their objections as a defence against return. The child’s age, degree of maturity, and the reasons for their objections are all factors taken into consideration. For this defence to be established, it is important for the Court to satisfy itself that the child has not been influenced by the abducting parent.
Consent or Acquiescence (Article 13(a))
If the left-behind parent consented to or subsequently acquiesced to the child’s removal or retention in another country, they may be precluded from seeking the child’s return under the Convention.
Settlement
Once a child has been removed to or is being retained in another country for over 12 months, there’s potential to argue that the child has established roots in the new state and hence should not be returned. This defence is applicable only if the child has resided in the country which they were removed to or retained for more than 12 months before the Hague Convention proceedings were issued. This defence cannot be run if the proceedings are issued within 12 months of the abduction.
Human Rights Considerations
If returning the child would violate their fundamental human rights or expose them to a situation incompatible with internationally recognised human rights standards, the court may refuse to order their return.
It is important to note that the application of these defences can vary depending on the specific circumstances of each case. Additionally, courts strive to balance the principles of the Hague Convention, including the prompt return of abducted children, with considerations of the child’s best interests and protection from harm.
How can Ellis Jones help?
If you need assistance or advice as you believe your Child is at risk of being abducted or you believe your Child has been abducted to England and Wales and you are trying to secure your Child’s return, please do not hesitate to get in contact with our specialist Family lawyers on 01202 636223 or by email to MatrimonialDept@ellisjones.co.uk.
How can we help?
When you submit this form an email will be sent to the relevant department who will contact you within 48 hours. If you require urgent advice please call 01202 525333.
