An update on child abduction and the Hague Convention. By guest blogger Jennifer Hollyer

What happens when parents separate abroad and one of them wants to return to England and bring the children with them? The prospect of desperate parents resorting to child abduction immediately throws up a raft of complex emotional and legal problems. On this blog we have heard from many mothers who are literally “stuck” in foreign countries, unable to leave with their children unless they are prepared to do so without the other parent’s consent or permission of the court.

The stakes are too high for most. There are risks of a criminal prosecution and the English court most likely ordering a return of the children back to the foreign country. These risks, viewed harshly in the cold light of day, are too much of a gamble for most parents. They aren’t prepared to break the law, and potentially lose custody of their children and go to prison. So instead they obey it at considerable personal cost. For many such parents the consequences of relationship breakdown in a faraway country wrecks their lives. So, some desperate parents decide to take a chance and bring their children back to England. They are prepared to try and fight in England to stay in their home country with their children. The chances are very high that they will be returned.

There have been a couple of recent decisions on this topic, so I asked Jenny Hollyer of our Children’s Department to firstly consider an important decision of our Supreme Court which came out last week. Next week she will be looking at A v T [2011] FD11P02388, a recent decision of Mr Justice Baker where the defence to a request for return of the child was acquiescence.

Under The Hague Convention on the Civil Aspects of International Child Abduction 1980 (“The Hague Convention”) the removal or retention of a child from a convention country would be considered child abduction and therefore breaking the law if it breaches the rights of custody attributed to another person, institution or body under the law of the state where the child lived before the removal (Art 3 of the Hague Convention).

So in practical terms, what happens if that parent leaves anyway and attempts to retain the children in England? As long as a full year has not elapsed since the wrongful removal or retention, then the English court will most likely order the return of the child to their country of habitual residence (Art 12 of the Hague Convention).

Is it abduction if there is risk of harm to the child?

It is possible to prevent an order being made to return children, but it only applies under certain restricted circumstances. The person or body who has removed the child and/or retained the child must prove either that:

  • Art 13(a) – The other person, institution or body was not actually exercising their custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in  the removal or retention; or
  • Art 13 (b) – There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

An order may also not be made where a child objects to being returned and is old enough and mature enough for the court to consider and take account their views.

( I am going to consider Art 13(a) in greater detail in Part Two of this post, which will deal with Consent and Acquiescence and be published next week.)

Ensuring that the child’s protection is the main priority

Where cases involve two member states of the European Union then European Council Regulation EC No 2201/2003, usually now as Brussels II revised, must be considered. This strengthens the fact that the best interests of the child are to be a primary consideration in these cases, and that this regulation will take priority over The Hague Convention. Article 11.4 of this regulation states that a court cannot refuse to return a child on the basis of Article 13 (b) (as above) of The Hague Convention “if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”.

Eighty-seven countries, including England and Wales, have signed up to the Hague Convention and have incorporated it into their own laws. If either the resident country or the new country is not party to the convention, other regulations will apply depending on which countries are involved.

The UK Supreme Court last week released its judgment in The Matter of S (A Child) [2012] UKSC 10 on this subject. In particular, it clarifies and reaffirms the principles stated by the same court in the previous case of Re E (Children) (International Abduction) [2011] UKSC 27. So what does this mean for the international movement of children and The Hague Convention in practice?

“Expose them to psychological harm”

In the case of Re E (Children) (International Abduction) [2011] UKSC 27, the mother, father and children resided in Norway. Upon separation of the parents, the mother removed the children from Norway and brought them to England without the father’s consent. The children, at the time, had a half-sister already living in England.

Suffice to say, the father was not happy and duly issued an application for the return of the children. In her defence, the mother pleaded that there was a grave risk that the return of the children would expose them to psychological harm and place them in an intolerable situation under Article 13 (b) of The Hague Convention because their primary carer would suffer significantly.

The mother claimed that she had been suffering long-term serious psychological abuse from the father and he also exhibited an angry approach towards the children. The father was also claimed to be physically violent towards other people and animals, and the mother was frightened that if he was violent to her he could kill her.

The mother was diagnosed as suffering from an adjustment disorder and the doctor considered that this would be made significantly worse if she had to return to Norway without the necessary support.

Upon liaising with a judge in Norway, it was discovered that the necessary support that the mother would need in Norway was available to her along with binding promises to the court by the father to ensure the safety of the mother and the children. In particular he undertook to:

  • Not use or threaten violence to, or harass or pester or molest the mother, or contact her save through lawyers
  • Not remove or seek to remove the children from her care pending an order of the Norwegian court or by agreement
  • Vacate the matrimonial home pending an order of the court in the child custody case and not go within 500 metres of it without the courts permission
  • Pay all household bills and child maintenance.

It was on this basis that the judge believed that the mother and children would be protected if they were sent back to Norway. He therefore rejected the mother’s defence and stated that it would overwhelmingly be in the children’s best interests for them to return to Norway and for their futures to be decided there.

The mother and her half-sister appealed on the basis that the court had not applied earlier case law properly. They argued that the court had failed to treat the children’s best interests as a primary consideration as stated under the United Nations Convention on the Rights of the Child and Brussels II revised. They insisted that a new approach to Hague Convention cases be adopted, in line with the European Court of Human Rights decision in an earlier case that to return the children would be in breach of their human right to family life.

The Court of appeal refused the appeal but allowed an appeal to the UK Supreme Court. The Supreme Court handed down its judgment on 10 June 2011, it made the following key points in international child abduction cases clear:

  • That The Hague Convention and other European children regulations regarding the international movement of children were formulated for the benefit of children generally and for the intention of serving the best interests of the individual child. These regulations were not for the benefit of the parents in the case.
  • That the children’s best interests were to be reunited with their parents as soon as possible so that one does not gain an unfair advantage over the other through the passage of time, and to be raised in an environment where there is no risk of harm.
  • That the court was to look at the particular circumstances of the particular child without conducting a full-scale investigation into the child’s future.
  • That if the court deals with the above three points fairly, then it is extremely unlikely that any human rights involving family life will be breached. The reason that the European Court of Human Rights found a return of children in breach of the right to family life was because there was a delay long enough and to return the children after such a period of time would not have been in their best interests.
  • That Article 13 (b) did not need to be construed any more narrowly than the wording provided. The risk of harm must be grave and the harm must involve something it was not reasonable to expect a child to tolerate. This wording is plain. Grave refers to the risk not the harm.
  • It was made clear that Article 13 (b) could be founded upon the anxieties of a parent about a return based upon subjective risk to her, that was of such intensity is was likely to strike at the foundations of the parenting of that child, to the point where the child’s situation would become intolerable.
  • That allegations under the Article 13 (b) defence would not be examined orally in court unless it was the appropriate thing to do. The court should first consider if they find the allegations to be true and then consider how the child could be protected against any risk presenting from these allegations. In considering this, it should take into account the child’s immediate future and the ongoing need for protection. The court should consider what is available to the other state’s court to protect the returning parent and children.

The UK Supreme Court refused the mother’s appeal and ordered that the children be returned to their home country.

A British mother and an Australian father

The aforementioned case of The Matter of S (A Child) [2012] UKSC 10 involved a British mother and an Australian father. The mother also had Australian citizenship. The parties’ relationship deteriorated to such an extent that the mother alleged her life with the father in Sydney had become so intolerable that she could not remain. The father abused alcohol and drugs and was experiencing serious financial difficulties, which fuelled the gradual breakdown in the relationship.

On 19 January 2011, the mother stated that she found the father injecting himself with heroin in their garage. She called the police and told the father to leave their flat and not come back. Various text messages were provided to the court that showed the father, among other things, offering to attend self-help groups, pleading for another chance and forgiveness and also threatening to commit suicide.

In addition the mother alleged serious violence from the father to her, including a threat to kill her. The father also cross alleged that the mother was violent during the relationship.

The Australian police obtained an Apprehended Violence Order for the mother and served it on the father.

On 2 February 2011, the mother returned to England with their child. The father did not provide his consent for the removal of the child from Australia and therefore, the mother breached the father’s rights of custody.

The father issued Hague proceedings and the case came before Mr Justice Charles in the High Court. In defending the wrongful removal, the mother relied on Article 13 (b), putting forward various allegations against the father.

In 2007, the mother, had been prescribed anti-depressants because she had symptoms of anxiety and depression relating to the separation from her first husband. The mother stopped taking this medication in 2009 when she fell pregnant. She had been consulting her doctor about this ever since, and following the move to England, the doctor provided an assessment that if the mother was required to return to Australia her mental health would suffer substantially.

The mother had also been having extensive psychotherapy in Australia, which continued by telephone after her move. It was stated by her psychologist that the mother had suffered an underlying and chronic anxiety condition since childhood. She concluded within evidence provided to the court that the mother was “subject to panic attacks; that she had seen the mother unravel, that the mother’s affect of fear overwhelmed her; that fear of the father’s mental instability, added to the stress of isolation in Australia from her family, might well undermine the mother’s capacity to hold herself together; that her likely clinical depression could diminish her secure attachment to [the child]; and that (so Ms MacKenzie said) the father was capable of being impulsive and dangerous towards her, the mother would be in a constant state of hyper vigilance, this being the very condition which would trigger an anxiety state”. Finally she stated that “should [the mother] be forced to return to Australia, I am concerned her anxiety will become crippling”.

The father provided the following undertakings as a means to protecting the mother and therefore the child in the event of their return to Australia:

  • That he would pay for their flights home and rent for two months
  • That he would contribute to further rent by way of periodical payments
  • That he will comply with the terms of the Apprehended Violence Order
  • That he would not remove the child from the mother’s care save for the purpose of agreed contact
  • That he would not approach within 250 metres of their accommodation save for any agreement surrounding contact with the child
  • That he would not seek to have contact with the mother except for through lawyers.

A jointly instructed psychiatrist in the case concluded that the mother had suffered battered woman’s syndrome followed by an acute stress reaction. However, her symptoms of acute stress seemed to have resolved themselves following the move to England. The psychiatrist concluded that: “the likely psychiatric and psychological impact on [the mother] of a return to Australia is significant and severe…The most protective measure would be psychological intervention for the father”.

Following the guidance presented in Re E Mr Justice Charles held that the protective measures offered by the father were not enough to prevent grave risk to the children upon their return. He found that the defence had therefore been met and ordered that the child should not be returned to Australia.

The Court of Appeal, however, allowed the appeal and ordered that the child was to be returned. It seems that the Court of Appeal did not give sufficient weight to all of the circumstances and therefore gave inadequate address of the mother’s case.  Instead they treated the mother’s defence as her own perception of what might happen and what the risks might be. The Court of Appeal also believed that Mr Justice Charles’ understanding of Re E was to “raise the bar” against applicants seeking a return order by allowing subjective perceptions of risks and beliefs of the consequences of returning the child. This it seems was making the defence under Article 13 (b) more restrictive than it actually should be.

The UK Supreme Court handed down its Judgment on 14 March 2012 and did not agree with the Court of Appeal that Mr Justice Charles had “raised the bar” and in fact agreed with his interpretation and application of Re E. They stated that: “if the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned”.

The Supreme Court reversed the Court of Appeal’s decision and upheld the High Court’s, allowing the mother and child to stay in this country.

This judgment provides further clarification for children practitioners regarding the process that the court will go through to make a decision as to whether children should be returned after a wrongful removal.

Following the judgment Reunite, a UK charity specialising in the movement of children across international borders, acted as an intervener in this case and commented on the outcome. The charity’s acting director, Alison Shalaby , said that: “We welcome this judgment as reaffirming the clear principles stated in the helpful and important previous decision of the court in Re E. Reunite continues to believe that the 1980 Hague Convention is a remarkably effective international instrument regulating the international movement of children and, where appropriate, preventing or remedying child abduction.”

Seeking the right advice

If you live in a country which is a signatory to The Hague Convention and you are considering moving to England, you must obtain the consent of the other parent who has parental responsibility or rights of custody. It is also more helpful to obtain the consent in writing. If you do not do so and remove the child and/or retain the child in England, it will be considered child abduction and unless there is a valid defence, the child will be returned and you will have to face serious legal consequences.

If, on the other hand, your child has been removed to England without your consent and you live in a Hague Convention country then you should immediately contact a lawyer for advice. Your lawyer is likely to advise that contact needs to be made with your country’s Central Authority who deals with Child Abduction. That Central Authority will then contact the Central Authority in England and arrangements will be made for proceedings to be issued. Time is of the essence and any delay could be detrimental to your case.

If anyone believes that there is a risk of one parent abducting a child then seek legal advice immediately to see what measures can be put in place to stop the child leaving the country.

 A University of Sheffield graduate in European, International and Comparative Law, Jennifer spent a period of time studying Finnish law at the University of Helsinki in Finland while completing her degree. She joined Stowe Family Law in July 2008 as a trainee solicitor. Now qualified, Jennifer plays a vital role in the children law and domestic violence department, assisting Head of Department Stephen Hopwood.

26 comments

SC - March 23, 2012 at 5:58pm

What about intra UK abductions when the administrators of the law get it wrong…where is the redress for unlawful abduction?

R A B v M I B [2008] ScotCS CSIH_52 (09 September 2008)
http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_52.html

[the English case on appeal was 28th May 2004 [2004] EWCA Civ 681 http://www.bailii.org/ew/cases/EWCA/Civ/2004/681.html

Mike - May 29, 2012 at 9:59am

Hi,
My name is Mike and I am having a situation where my wife abducted our 2 children in Canada while we were there visiting before 3,5 month’s.
It all hapend while I was at work, she took our kids and went to a women’s shelter accusing me for child abuse and utering death threats to her. At that time we were staying at my cousins house, where 5 adult family member’s live and she never said anything to them or me about that she is having problems living with me.
She is a American/Croatian citizen, our children are born in Croatia and they are Croatian citizens, but where traveling with American passport’s and I am a Canadian/Croatian citizen. We all had a address and we lived in Croatia, not in Canada. I had to return back to Croatia alone, because I lost my job, and I had no place to live and stay.
I hired a lawyer in Canada and I activate a proces of returning the children to Croatia through Croatian institution’s under the Hague convention. In the first day’s of my wife leaving me with our children she wanted to reconcile and she wanted the family back together and that she still loves me, under the condition that I go to angry managment counsuling, I agreed the same moment, and she wanted for me to see the kids that weekend, she went away on Wednesday. That was on Friday and then she called my lawyer and said that she was advised to wait untill Tuesday for counselling and that I can see our children on Wednesday but it never hapend and after that she did not alow me to talk to our children for 51 day and only after 4 intervention’s of my lawyer toward her lawyer.
When she was on court she said that she has no intention of getting back together with me at all.
She still does not want to talk to me.
Please give me any advise what to do and what are my chances of getting my children back under the Hague convention?
Thank you and best regards,
Mike

Roz - May 31, 2012 at 7:42pm

That made interesting reading. I’m currently fighting a court battle to be allowed to return to England from Portugal with my 2 small children.

I’ve read so many stories of mothers “stuck” in a foreign country after leave to relocate is refused, but in EVERY instance I’ve heard of the father is a national of that country. In my case my Ex is also English, my kids were both born in England. I want to ask you lawyers – have you ever heard of a case like mine where everyone is English? My Ex doesn’t have any binding reason to stay here (Portugal) ie no job, family etc. He just prefers to stay!!! Also it’s impossible for me to stay as I have no income, and can’t speak Portuguese so have no job prospects. He doesn’t give me any money. So if I lose this court case, I’ll end up losing my kids!

I can’t believe this could be legal. Please let me know if this has ever happened before.

Thanks.

Heartbroke - June 24, 2012 at 5:30pm

You want to bet its legal Roz, I lived in Australia for a mere 6 months with my now ex and 2 children who are all British. When I wanted to return to the UK he applied for a stop on the childrens passports In the Australian courts, who were 7 and 14 at the time. It took me 9 months of litigation to get a leave to remove order. He stayed in Australia, no family there, nothing just his choice. 4 years later he abducted our child from the UK. I now have to hope the Hague return her, how long will that take…. how long is a piece of string.
Good luck in getting your order to return.

Alley - July 18, 2012 at 5:56pm

There is a new petition to US Secretary of State Hillary Clinton to help bring home the 4 American children abducted by their non-custodial mother and illegally taken to Russia. The mother lost custody because she was found mentally unstable.

http://www.thepetitionsite.com/takeaction/848/883/039/

GBS - September 27, 2012 at 9:56pm

My wife took my two children from New York (one born in the US and one born in the UK) without my consent back to her family in the UK and made false allegations to social services about sexual abuse of my daughter in order to force the directions of the divorce proceedings. The social services and the police closed the case without any criminal proceedings or investigations. My wife cut all contact between the children and I as well as between the children and my family. She has refused all mediation and refuse all contact.

As a father who only wants to be involving in raising my children I have had to file for abduction hoping this might become a reality. My real issue is that there are no consequences for parents who remove kids/make false allegations/have no intentions of mediation in child custody cases.

Observer - September 28, 2012 at 8:11pm

GBS – Britain has a long history of institutionalized child abuse, dating to the Australia deportations if not earlier, and stretching through to all sorts of cover-ups. What you describe is a part of this story, child abuse legally mediated by lawyers and the family justice system that is about to crack.

sam - October 2, 2012 at 3:38pm

my brother , his wife and children are living in the UK <about 3months ago his wife wanted to go see her mother as she had very little time to live as she "has cancer"( not sure about that ) but after some deliberation my brother consented to let her take the children to see her mother for 2 months. after 2 weeks of being there she informed him she was not coming home .and for the balance of the time refude to let him talk to his children which stressedhim out and they change there number so he could not get hold of them at all. and is now applying in the australian court to have soal custerdy of the children. my brother is stuck in the uk he does not have money to fight this in court is there somewhere in london that can assist him in trying to get his kids back to the uk thanks for any help you could offer

Marilyn Stowe - October 2, 2012 at 6:56pm

Sam
I have changed your name. Child abduction is a criminal offence and there are arrangements in place to deal with child abduction between the UK and Australia.
He should contact the link below immediately.
http://www.justice.gov.uk/contacts/ospt
Best wishes
Marilyn

MotherNeedsHELP - October 27, 2012 at 11:57am

Hi Marilyn,

I just happened to read this post at a time when its something i’m really worried about.

I am a divorced mother with two young children. i was granted full residence of both my children, my ex has no contacts whatsoever with the kids. and hasn’t seen then in almost three years( he’s asked to see them though,mainly when he wants to pester me. but due to the high level of domestic violence i suffered while i was married to him, and the children were scared by this, which was one of the reason he was denied custody, and i have maintained that he goes through the court to maintain contact which he has refused. This makes me worried, why he wouldn’t, maybe he cant be bothered? maybe he has ulterior motives? he has threatened to harm me and the kids in the past)

I plan to relocate to another country, please note that this new country is not my birth country. we all live in England, my children are both British, i just became British by naturalization. I also want to mention that i’m not taking the children out of the UK to hurt my ex, I have a prospective job offer in Asia. this means a better life for myself and the children in particular. My ex doesn’t pay child support .

My ex has no contacts with the kids, but i know he would be a pain in my backside if he has a clue about this, can he stop me from moving the kids abroad? do i have to inform him even though he has no parental responsibility and we aren’t on speaking terms( purely because i want to spare myself the headache to be honest) ?would i be committing an offence in doing so? and what are my chances of being able to do this if he ( my ex) decides to fight this?

I anxiously await a reply, thank you

GjM - June 17, 2013 at 7:41pm

Hello, I know of a young lady who was made to return to Cyprus with her child when she left he Husband to come home to the UK. She is now living there awaiting a divorce. She would like to come home and visit her family in the UK and bring the child to visit his other relatives but there seems to be no way forward so she is a prisoner in Cyprus and the child is deprived of seeing his other relatives and vice versa. Does anyone have any ideas?

Susan - June 22, 2013 at 6:17pm

I am living in france, have a child with a swedish man – we never married or had a judgement regarding legal rights of custody etc.
I have a business which is going bankrupt, that I have a chance to save, if I move the business back to UK , and we live with my mother. He is an alcoholic and a sex addict (try proving either of those things) he has lost his job, tho his profession is one that takes him away from the country for considerable periods of time(he has been available to have our son for less than 150 days in two years). I need/want to move to UK for familial support and business.
He has got a date now for a judgement, since I removed our son from his care for yet again, putting him at risk with his alcoholism – I have given him four years of chances.
Can I leave before the judgement is made? I don’t trust the French system to take care of my son.
If I lose my business, I have no means of claiming dole etc, no financial support and he is now lying about his (ex) salary.. Surely I have a right to family support and to earn a decent salary to support my son.? I’m not denying him access, he sees our son twice a week with me, and they speak every day on skype or phone. He can fly to UK, surely, he has the funds and time to do it..
Advice please..
Susan

no where to turn - July 19, 2013 at 4:43pm

My child has talked about being abused for the past two years. There is medical evidence and a forensic interview of my child disclosing abuse. Family court, CPS, and the police who did the investigation are doing nothing to protect my child. They believe the lies of the other parent and have spent most of their time investigating the validity of those and trying to get evidence to support them. It sounds like I only have a very slim chance of getting protection for my child under article (b) of the Hague Convention. Your thoughts?

Chavez - July 19, 2013 at 5:44pm

My thoughts would be that children are no longer safe in uk. 99 percent allegations are false, because so many and lawyers have used these. So it’s only natural that these allegations are increasingly being dismissed, after everyone in the industry has made money on them. It is little wonder that making allegations false is condoned and encouraged by courts.

della - August 2, 2013 at 10:19am

i want to move back to u.k,with my sons who are 13yrs but they were born in Australia,the father my ex husband,only sees one of the boys ( they are twins ) every 3rd week of the month for 4hours,the other child wishes no contact with his dad,and it was ordered by the courts that my ex respects his wishes.all my family are back home,why should I have to stay in this country ( Australia ) for my ex to have our son for 4 hrs every 3 weeks.? the son he sees has aspergus and couldn’t not express himself like his brother could when we went to see a child lawyer,hence this is why my other son don’t see him,they turn 14 yrs in janurary 2014. he wont give me permission for me to move with the boys I can take for holiday,but have to come back,what happens if I don’t ???

Dean - September 26, 2013 at 9:11am

I am waiting for a final decision from a Judge in a hague convention case.I live in spain.My son was bourn in spain. I am english and so is my x.
My x abandoned our son for 3 months upon leaving the family home .i denounced this fact.
3 months past and she took our son by force.taking him back to the UK.
She claimed physical violence and claimed that i gave her permission to take our son to the UK.
At this moment in time she has dropped all defence except is now saying that she has no means of supporting herself in spain and that is why our son is not to be returned.
Is there any other cases like this one that set a president .( Mother has given up her job and now claims cant get work in the country where she abducted child )

Adil Zargar - August 4, 2014 at 12:12pm

My ex-wife walked out on me whilst 6 months pregnant. She moved to India, got re-married and I am allowed no visitation/contact with my son, a 4 year old boy whom I have never seen nor spoken to. No lawyer in the U.K. will help me and India is so corrupt that I can’t get anyone to touch the case as I am not prepared to bribe lawyers and others.

Lisa - August 15, 2014 at 7:49am

Hi. I am looking for some advice. My British friend lives in Australia with her partner (not married) and 3 children all born there. She also has citizenship. The relationship broke down a while back and she is desperately unhappy. She wants to return to the UK but he will not hear of it. Is there any hope?

Luke - August 15, 2014 at 3:12pm

It depends what you define as ‘hope’ Lisa – I really ‘hope’ that she is not able to steal them away from their father to the other side of the world – fortunately I think that in most cases where common sense prevails this particular ‘hope’ is likely to be fulfilled.

SJ - February 23, 2015 at 4:03pm

My Son (British), married to a South African, lived in the UK, marital problems occurred, she left him and moved somewhere in London.. My son got a prohibited steps order to late, as she had his daughter removed back to South Africa, without his knowledge.. Got a court ruling from the high Court for his daughter’s return, dealt with ICACU… Got a mediator to draw up visitation and access to his daughter, and agreed to drop the order for her return… The Mother has passed away, and my son is having problems in getting his daughter, he needs a British passport for his daughter, and the death certificate has been blocked in South. africa…. We are extremely worried, and don’t have any contact with her now, as the family of my son’s late wife, is refusing any contact.. please let us know if there is any way we can get help somewhere

Andreas - March 24, 2015 at 12:54pm

I do not see The Hague Convention on child abduction as a pro-father or pro-mother legal framework. It is a pro child law. Not surprisingly the parent taking the child without the consent of the other parent would want to look at the Convention as crafted against them. It is not. Where the child’s safety is at stake the Convention does not require the relevant jurisdiction to return the child to an unsafe environment. It is plain and simple not withstanding the high emotional atmosphere usually surrounding these issues. If the parents cannot live together as a married couple for whatever reason it is better to proceed under local jurisdiction to obtain a divorce with joint custody thereby securing what is best for the child and a safe way forward for the parents. Unfortunately, lawyers of the sides do not advise their clients on what is best fort he child but rather what is “best” fort he client paying the bill. The child gets caught in the middle.

Andrew - March 24, 2015 at 5:42pm

If you read the travaux preparatoires for Hague it is striking how the drafters expected that courts would normally be faced with wicked fathers who seize their children from outside the school gates – in fact the early drafts were written on the assumption that the abducting parent would be the father and making the text unisex was a later thought.

In fact the paradigm case is that of the mother who settles with the father in his country and then decides she wants to go home and take the children with her. I remember when the Convention was first in force bitter complaints that it was “forcing a mother to give up HER children”!

Goodness knows how many children are abducted by fathers who either cannot trace where they have been taken, or decide they will be better with the mother, or have no faith in the courts of the country in question, or – in some cases – just cannot be bothered. But some will not stand for it and exercise their Hague rights, and more power to their elbow!

Mother - November 16, 2015 at 2:17pm

I am mother who divorced 7 years back . Two children My ex husband wanted one kid to himself and one to me. As he thinks my son is not hisar so he can claim benefits being single parent. When I disagree he hit me and threat me to kill . As I moved to UK only due to marriage my No financial help , no support has given by my ex .after divorce I decided to move to India as I have all family financial support and safety was there.he consented me to take just son not the other child & decided kids will see in Christmas and summer holidays .he suggested that as we agree we should not pay money to lawyers and to court , I agree as I he no money anyway. Back home few days he was normal and suddenly his mobile no change & landline changed . Police came to my relative house that my ex complained that I abducted my son. I tried so many times to talk to him but he was upset that I move on in my life and do not want to see my son s face and didn’t even let me speak with my child in his custody even once . I came back in 2012 for holidays and hope to talk to him and see my child .he blindly refused to contact , I came in 2014 and police arrested me for the child abuction complain of 2009 . I remarried had 3 years old daughter from second marriage . Myself , my son and daughter stuck in uk from last 1.5 years . And my case in trial . My ex still doesn’t make any effort to talk to his son or doesn’t want any relationship but he is very much interested mother to be prosecuted or jail sentence . Is this fair someone who know the law and misuse it or just to take revenge ?? Children are suffering as how would anyone feel come for holiday and passport been seized and not to allow back to your own home
??

m - November 24, 2016 at 7:18pm

b2aware.wordpress.com/
biir article 11.4 is a joke and should be abolished.
having fled domestic violence i was suddenly confronted with being accused of abduction.
article 13b if there is a grave risk of harm they should not be sent back end of story.
article 11.4 relies on someone who is violent and abusive to conform to the law, inherently the protection measures offered by this law will be ignored.
an overwhelmed ‘local’ judge will not even be aware of article 11.4 and dismiss the protection measures and see the ‘abductor’ as the criminal.
Protect Children from Domestic Violence and Abolish BIIR Article 11.4

CA - July 11, 2018 at 10:38am

My daughters ex husband wants to go to court to get permission to take their 4 year old son to Qatar next year. He is English but has a brother living in Qatar. We have emails evidence that he is actively sending his CV out to the middle east however this evidence came from access to his email (not hacking) he didnt change his password and there was interaction between him and an employments agency for work in the middle east. We know this information is not admissable but believe there is a definite risk he will not bring the child back. Marylin Stowe tops the polls for this type of work and we are feeling desperate, he has already taken all her money and contributed nothing in 6 years. very worried indeed Any advice would be gratefully received. Thank you

Kate Nestor - July 11, 2018 at 3:36pm

Hi, I have passed your details to one of our specialist family lawyers who will get in touch with you direct. Kind regards

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