The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty designed to protect children from wrongful removal or retention across international borders. It provides a legal framework for the prompt return of children to their country of habitual residence, ensuring custody disputes are resolved in the appropriate jurisdiction. It ensures that custody disputes are decided in the child’s country of habitual residence, not by unilateral relocation.
Scenario: A holiday that doesn’t end as planned
Imagine this situation:
A mother takes her children on holiday to a country that is a signatory to the Hague Convention. The trip is agreed upon, and the father expects the children to return on a specific date. However, the mother decides not to return and remains abroad with the children.
This situation is known as wrongful retention and raises serious legal implications under the Hague Convention.
What are the options for the Father?
If the mother fails to return the children as agreed, the father may consider the following steps:
- Act quickly – Immediate legal advice
Time is critical. The Hague Convention requires applications for return to be made promptly, ideally within six weeks. - Apply through the Central Authority – Submit a Hague Convention application
The father can apply through the Central Authority in his home country for the return of the children. The application will be forwarded to the Central Authority in the country where the children are located. - Court proceedings abroad
The case will be heard in the courts of the country where the children are currently residing. The focus will be on whether the removal or retention was wrongful under the Convention. - Consider exceptions – Prepare for defences
The mother may raise defences under the Convention, such as:- Risk of harm to the child if returned.
- The child’s objection to returning (if of sufficient age and maturity).
- The father’s consent or acquiescence to the relocation.
What are the options for the Mother?
If the mother wishes to remain abroad, her options are limited under the Hague Convention, but she may:
- Raise a defence under the convention
As noted above, she can argue that returning the children would expose them to physical or psychological harm or place them in an intolerable situation. - Negotiate through mediation
In some cases, parents can agree on arrangements without prolonged litigation, such as agreeing to relocate lawfully or setting up contact arrangements. - Seek legal advice immediately
Hague cases move quickly, and the rules are strict. - Apply for custody in the new country
However, custody proceedings in the new country will usually be stayed until the Hague application is resolved.
Key takeaways
- The Hague Convention prioritises returning children to their country of habitual residence.
- Speed is essential—delays can weaken a case.
- Both parents should seek specialist legal advice immediately.
If you are facing a situation involving international child abduction or wrongful retention, our family law team can guide you through the process and protect your rights.
How can we help?
Rina Mistry is a Legal Director in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children law, international family matters, and domestic abuse.
If you need any advice concerning the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our solicitors can provide, along with details of our hourly rates.
For more information or advice, please call Rina or another member of our team in Derby, Leicester, or Nottingham on 0808 258 0461 or contact us via our online form.
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