How the Court deals with Child Abduction

Abducting a child to another country is obviously one of the worst things that a parent can do, causing not only extreme stress for the other parent but also potentially serious harm to the child’s welfare.

And so it is that the 1980 Hague Convention on Child Abduction, recognising the harmful effects of abduction, establishes procedures to ensure the prompt return of abducted children to the state of their habitual residence.

Almost half of all countries of the world are signatories to the Convention, including the UK, the EU, North America, most of South America, and much of the Far East.

If a child is abducted to one of those countries then an application can be made under the Convention to the courts of that country for the summary return of the child to the country of their residence.

And only in limited circumstances will such an application be refused, for example where there is a grave risk that his or her return would expose the child to physical or psychological harm.

Note that an order that a child should be returned to their home country does not decide the long-term arrangements for that child, only that the child should be returned – such decisions should be made by the courts of the home country.

The workings of the Convention were clearly demonstrated by a recent case that took place in the High Court in London.

The case concerned a father’s application to the court here for the summary return of two children aged 12 and 10 to the Republic of Ireland. The mother had brought the children from Ireland to England in December last year, without the knowledge or consent of their father.

The mother accepted that the father did not consent to the children living in England, but opposed the application on two bases: firstly that the children objected to being returned to Ireland, and secondly that being returned would expose the children to grave risk of harm, or an otherwise intolerable situation.

But the High Court did not accept the mother’s arguments.

The court was completely satisfied that returning each child to the jurisdiction of the Republic of Ireland would not expose either of them to a great risk of physical or psychological harm, and would not otherwise expose them to an intolerable situation.

The children did object to returning to Ireland, but their objections were significantly outweighed by the factors in favour of return, such as their family and other connections in Ireland.

Accordingly, the court ordered that the children be returned to the Republic of Ireland.

But the mother was not prepared to leave the matter there. She then applied to have the return order set aside.

The court, however, saw no reason to set the order aside.

The judge found that the mother had inexcusably plotted to abduct the children to England by deception, and said this:

“The Hague Convention 1980 is one of the greatest and most effective conventions in international law. It was devised by a community of nations to counter and correct precisely the kind of behaviour [the mother] has so flagrantly demonstrated.”

The mother’s set aside application was therefore dismissed.

The judgment on the father’s application can be read here, and the judgment on the mother’s set aside application is here.

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