International Instruments for Dealing with Abducted Children

Three important international instruments

There are three provisions that have been put in place for the protection and safe return of abducted children that apply internationally:

  1. The Hague Convention

  2. Brussels P Regulations

  3. European Convention

This article looks at The Hague Convention.

The Hague Convention

  • The Hague convention has 80 contracted states that are bound by the convention itself. Some of these states include the United Kingdom, USA, Australia, New Zealand, Several African states including South Africa and most European States.

  • States that have not signed up to the protection by the Hague Convention include India, Pakistan and China (exc.  Hong Kong and Macau) 

Aims and objectives of the Hague Convention

  • The main aim of the Hague Convention is to secure the prompt return of the child(ren) and to secure respect for the rights of the child(ren) in question.

  • Art 12- Provides remedies for breach of rights to custody – including speedy return of the child 

Basis of the Hague Convention

  • Where an application is made for the return of a child from one of the contracting states under the Hague Convention , the court is directed not to consider the merits of the case, background information, previous dealings etc, but is to make a decision solely based on whether or not the child should be returned.

  • The reasoning behind the conventions approach is that they believe the children’s best interests will generally be met by prompt return to their home country. If the trial was to consider all the merits of the case this would be a lengthy process. Art 13 does set out limited grounds on which the Hague convention can refuse to order the child’s return. 

  • It will then be for the home state, the country where the Child lives to decide any Case regarding the merits and facts of the situation. 

When does the Hague Convention Apply?

  • Art 4 – The convention applies to any child under the age of 16 and habitually resident in one contracting state, who has been wrongfully removed or retained in another contracting state.  

  • Wrongful removal of the child occurs if the removal/ retention is in breach of ‘rights of custody’ and at the time the child was taken those rights where being exercised.

Applications for the child’s return

  • Once an application for the child’s return has been made, Article 12 of the Convention instructs the court so long as the application is made within 1year of the child’s removal, to order the return of the child.

  • If more than 1 year has passed, the courts shall still order the return of the child unless the court believes that the child Is settled in the new environment.

Reasons for not ordering the child’s return

  • Art 12- Return of the child may be refused if the application was made after a year has passed and the child is now settled in the new environment

  • Art 13(a)- Application may be refused where the person who had custody of the child was not actually exercising their rights over that child (e.g. Parental responsibility) at the time the child was removed

  • Or Consented to the removal

  • Or subsequently accepted the removal

  • Art 13(b)- Return will be refused if there is grave risk that returning the child would expose the child to physical or psychological harm or place the child in an intolerable situation.

  • Return may also be refused if the Child objects to be being returned and is of an age and degree of maturity at which it is appropriate to take their views into account.