Child abduction is a deeply distressing issue, the law governing it aims to protect children from harm while respecting parental rights. It is based on the Hague Convention on the Civil Aspects of International Child Abduction 1980, implemented in domestic law through the Child Abduction and Custody Act 1985.
What constitutes wrongful removal?
To engage the Convention, an applicant must prove the child was wrongfully removed or retained. According to Article 3 of the Convention:
- Removal or retention is wrongful if it breaches custody rights under the law of the child’s habitual residence before the removal.
- Those custody rights were being exercised or would have been at the time of removal.
What is the purpose of the 1980 Hague Convention?
Under the Convention, a child who is wrongfully removed from or retained outside their country of habitual residence must be returned promptly, unless specific exceptions apply such as the risk of “grave harm” to the child (Article 13(b)) or if the child objects to return and is of sufficient age and maturity.
- Protecting children from the harmful effects of wrongful removal or retention.
- Ensuring the prompt return of abducted children to their country of habitual residence.
- Respecting custody and access rights across different countries that are Contracting States to the Convention.
What is grave risk?
Under Article 13(b) of the Hague Convention, a court is not required to order the return of a child if:
“...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.”
· Is the harm serious, not just ordinary distress or discomfort.
· Is the risk real and substantial, not speculative.
· The harm cannot be mitigated by protective measures in the country to which the child would return.
Child’s objections
Under Article 13 of the Hague Convention, a court may refuse to order the return of a child if:
“...the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views.”
This is commonly referred to as the “child’s objections defence.”
When deciding whether to uphold a child’s objections, the court must assess:
1. Genuine Objection – child’s objection must be clear, strong & independent. Not the result of undue influence by one parent.
2. Age – usually over 10 years but child’s maturity is considered
3. Welfare – The child’s welfare remains a central consideration. The court may order return despite objections if it is in the child’s best interests overall.
4. Reasons for objection e.g. loyalty, fear, preference or manipulation.
Protective measures
The courts may still order a child’s return even if a parent raises the “grave risk” defence (Article 13(b)), provided that protective measures can reduce or eliminate the risk.
Protective measures are legal or practical safeguards put in place to protect the child (and sometimes the abducting parent) upon return to the country of habitual residence.
These can include:
- Undertakings by the left-behind parent (e.g. not to prosecute or not to remove the child again).
- Court orders from the requesting state to ensure the child’s safety.
- Supervised contact or handover arrangements.
- Protective injunctions or restraining orders.
- Monitoring by welfare agencies or family courts in the home country.
Courts in England and Wales will only accept protective measures if they are:
The goal is to balance the need to return the child swiftly with the duty to safeguard their welfare.
- Specific and credible (not vague or unenforceable),
- Effective in practice, and
- Capable of being enforced in the requesting country.
Conclusion
The family courts of England and Wales continue to take a firm stance on international child abduction. Recent case law reflects a clear commitment to upholding the principles of the Hague Convention, protecting the rights of both children and parents, while ensuring the child’s welfare remains paramount.
Further information
If you would like more information or wish to discuss this topic further, please feel free to contact Monika Brar at JPC for a free initial 30-minute consultation.
Email:mbrar@jpclaw.co.uk
Tel: 020 7644 6305
