The 1996 Hague Convention will apply for all child abduction matters outside of the scope of Brussels II bis, which applies when the child or children concerned are either habitually resident in an EU member state or an EU member state has already made orders in relation to that child or children, regardless of where they are habitually resident.
Clearly, when a child is taken away from his or her home by a parent, emotions run high. The Hague Convention case of H v K  EWHC 1141 (Fam) illustrates how the 1996 Convention works in practice, when a parent decides to take the law into his or her own hands and then opposes an application to return the child to the country where they usually reside.
The primary objective of the Hague Convention
The Hague Convention legislates on jurisdiction, applicable law, recognition and cooperation in respect of parental responsibility and measures for the protection of children. The Convention exists to ensure that children who are removed unlawfully from a jurisdiction are returned as quickly and effectively as possible. If the court in one signatory state has made an order relating to the residence of the child, then the signatory state to where the child has been removed must rectify this, through the courts. This is reflected in the court’s statement in H v K that “…the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly” [para 64] and is always worth bearing in mind in these cases.
A grave risk of physical or psychological harm
Notwithstanding the primary objective of the Convention, there are circumstances under which the courts in one signatory country can refuse the application for return. If there is “a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” (Article 13(b)), then the court can reject the application for the return of the child. This is quite a high hurdle for the respondent (opposing the application) to overcome. The leading authority on Article 13(b) defences is Re E (Children) (Abduction: Custody Appeal)  UKSC 27:
“…the court should first ask whether, if [the allegations are] true, there would be the grave risk as defined by Article 13b. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country … Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”
The child’s objection
This is an alternative approach to resisting an application for the return of a child. According to Article 13, “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” The principles that apply when considering this are as follows:
- Does the child object to being returned and has he or she attained sufficient maturity so that his or her views can be taken into account?
- It is a question of fact – and the child must express an objection to being returned, as opposed to a preference or a wish
- A child’s objection in these circumstances is not determinative of the application, but it gives rise to a discretion
- The court must take account of the child’s views, nothing more
- When exercising the discretion there is no exhaustive list of factors to be taken into account. The child’s welfare, and the objective of the Convention mentioned above must be considered. It’s also important to examine the nature and strength of the child’s objections, and whether there are authentically the child’s objections or those of the abducting parent
Hague convention defences: Article 13 and 13(b) in action in H v K
Back to the facts of H v K – the couple were residing in Hawaii (hence outside of the scope of Brussels II bis) with their children, B and M. The relationship between H & K had broken down and divorce proceedings were underway. After a series of allegations, counter allegations, applications and orders, in October 2015, a mutual non-removal order was made, preventing either parent from taking the children from Hawaii without permission. K, the mother, was then given permission to take the children to London in July 2016 for a memorial service. Having travelled to London, she did not return with the children when she said she would. It also appeared that she had taken a complicated route from the USA via Spain and other locations, to try and evade detection.
Grave risk of harm
When the father, H, made the application under the Hague Convention, for the children to be returned, K resisted. She argued that
- there was a grave risk of harm to the children or that they would be placed in an intolerable situation, and
- that the children objected to the return.
The judge rejected K’s arguments under both headings. In respect of the first argument, the judge considered that undertakings given by H, combined with the protective measures that were available in the USA, including psychological evaluation and therapeutic intervention to support the children on their return, would prevent an occurrence of the harms anticipated by K.
The judge also noted that K could not rely on the impact of her own, unlawful behaviour to succeed. K argued that if she returned and were to be arrested for abducting the children, it would place the children in an intolerable situation. To allow K to rely on this would undermine the objective of the Convention. For the Convention to have teeth as a legal instrument, children who have been unlawfully taken by one parent should, more often than not, be returned promptly. As the court pointed out “…the court…has no business trying to protect the abducting parent from arrest and prosecution upon their return under domestic laws designed to achieve precisely the same end.”[para 64]
The judge agreed that the children had objected to returning to the USA and were old enough to have their views taken into account. However, having taken those views into account, he still felt that they were not enough to refuse the application for the children’s return. He doubted to what extent the views expressed were those of the children rather than expressions of the mother’s feelings. He felt that there were ‘manifest welfare advantages’ [para 65 (ii)] to the children returning and having the welfare issues determined by the courts that were already dealing with these issues. He also thought it would be beneficial for the children to maintain their relationship with the father, something which would be unlikely to happen if the children stayed in the UK.
Protecting the welfare of the child through the law
Ultimately, the Convention, and the courts are there to protect the welfare of the child. Notwithstanding that this case deals with international legal issues, it serves as a reminder that seeking to avoid the legal process is unlikely to achieve beneficial results in the end. As the judge also pointed out, in comments clearly aimed at the mother in this case, “Children with separated parents grow up, and, ultimately come to render their own judgements about the character and conduct of each of their parents. It is my experience that a parent who has sought to undermine their child’s relationship with the other parent does not fare well in that reckoning” [para 70]. Food for thought, whether the separation of parents has an international element to it or not.