The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty that provides an expeditious method to return a child who was wrongfully taken by a parent from one country to another country. In order for the Convention to apply, both countries (the one the child was removed from, and the one the child has been brought to) must be Contracting States; i.e. both must have adopted the Convention.Nick Bala and Mary Jo Maur, The Hague Convention on Child Abduction: A Canadian Primer, 2015 24th Annual Institute of Family Law Conference 5, 2015 CanLIIDocs 5072, https://canlii.ca/t/ss1w at 3.
The Convention seeks to address international child abduction arising when a child is removed by one parent, when both parents have custody rights, or custody has yet to be determined. It was drafted to ensure the prompt return of children wrongfully abducted from their country of habitual residence, or wrongfully retained in a country that is not their country of habitual residence.Hague Convention, Preamble.
The Convention was developed by the Hague Conference on Private International Law (HCCH). The convention was concluded 25 October 1980 and entered into force between the signatories on 1 December 1983.
As of 2022, there are 103 parties to the convention; Botswana and Cape Verde being the most recent countries to accede, in 2022.
Aims and Scope of the Convention The objectives of the Convention are set out in Article 1: to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and, to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.Hague Convention, Article 1.
The Convention is used when one parent (the "abducting parent") allegedly removed or retained the child in a State other than the State of habitual residence, either:
before a court in the State of habitual residence ruled on custody and access, or after a court in the State of habitual residence ruled on custody and access and the wrongful removal or retention interfered with the custody or access rights that the other parent (the "left-behind parent") had under that order.
The Convention, by returning children to the State of habitual residence, deters parents from crossing international borders in search of a more sympathetic court (i.e. one who is more likely to rule on custody and access in their favor).
In order for a court to order the return of a child under Article 12 of the Convention,Hague Convention, Article 12. these conditions must be met:
the child was removed from their habitual residence;Hague Convention, Article 4. the child is under the age of 16; and the removal of the child was considered wrongful.Hague Convention, Articles 3 and 5.
Even if the above conditions are met, the court might not order the return of the child because of the exceptions specified in Articles 12 and 13.
Special Commissioner meeting held in Hague, Netherlands in 2023, Hague Conference reaffirmed the common goal of Hague convention and UNCRC, by making the following statement:
Procedural nature
The Convention does not alter any substantive rights of the parents. When an abduction occurs, the parent seeking the child's return will commence proceedings by making an application to the Central Authority. Each Contracting State is required to have a Central Authority to help facilitate the child's return.Hague Convention, Article 6.
Depending on the Contracting State, the role of the Central Authority varies. For example, in Germany, the Central Authority will take the matter to court on behalf of the left-behind parent. In Canada and the United States, it is the left-behind parent who appears in court while the Central Authority acts as a liaison.Nick Bala and Mary Jo Maur, The Hague Convention on Child Abduction: A Canadian Primer, 2015 24th Annual Institute of Family Law Conference 5, 2015 CanLIIDocs 5072, <https://canlii.ca/t/ss1w> at 6-7.
The Convention requires that no judicial or administrative authority in the State the child has been brought to shall decide the merits of custody or access until it has been determined that the child is not to be returned under the Convention.Hague Convention, Article 16.
A court in the State the child has been brought to should not consider the merits of the underlying custody or access dispute, but should determine only the country in which that dispute should be adjudicated.
The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, "shall act expeditiously in all proceedings seeking the return of children",Hague Convention, Article 11. and the institutions in each Contracting State "shall use the most expeditious procedures available" to ensure the prompt return specified in the Convention objectives.Hague Convention, Article 2.
Wrongful removal or retention The Convention provides that the removal or retention of a child is "wrongful" whenever: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.Habitual residence must be assessed first because whether or not a parent had rights of custody is determined by the law of the place of habitual residence. (See, for example the U.S. case Carrascosa v. McGuire, where the Court refused to accept a Spanish Court's decision that the father did not have rights of custody. The Spanish Courts never applied New Jersey law despite acknowledging that the child's place of habitual residence was New Jersey).
Habitual residence An application for the return of a child can succeed only if a child was, immediately before the alleged removal or retention, habitually resident in the Contracting State to which return is sought. This means that a child, taken from State A to State B, will only be subject to a return order to State A if the court determines that the child’s habitual residence was State A at the time the child was taken.
The Convention does not define the term "habitual residence", so it is open to the courts in each Contracting State to do so. It is intended to be a fact-based determination, avoiding legal technicalities.
There are a few approaches to assessing habitual residence, depending on the court seized of the analysis.
The parental intention approach. Under this approach, the court looks for a shared intention on the part of the parents (when there has been a move and there is a dispute as to whether the parents intended for the child to retain the existing habitual residence or acquire a new one). the U.S. case Mozes v. Mozes has provided guidance on the parental intention approach. The jurisprudence in some U.S. States continues to treat shared parental intent as a decisive factor in the determination of a child's habitual residence. Under this analysis, a parent cannot unilaterally create a new habitual residence by wrongfully removing or retaining a child. The court must look at the shared intentions of the parties, the history of the child's location and the settled nature of the family prior to the facts giving rise to the request for return. The child centered approach. This approach calls for the court to look towards the child, not the parents, and to examine past experiences of the child, not future intentions for residence. The court will consider the child’s connections with the State including their academic activities, social engagements, participation in sports, and meaningful connections with the people and places. This approach is used in some U.S. States, and in Germany. The hybrid approach. Using the hybrid approach, the court does not look exclusively to parental intent or to the child’s acclimatization to a State, rather, the court looks at “all relevant considerations arising from the facts of the case at hand.” This approach is used in the UK, Canada, Israel, and again some U.S. States. The application judge determines the focal point of the child's life which is the family and social environment in which its life has developed, immediately prior to the removal or retention. The judge considers all relevant links and circumstances – the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B. The child must be physically present in that place and that presence cannot be temporary or intermittent. Other factors relevant to the determination of habitual residence include the duration, regularity, conditions and reasons for the child's stay in that State. When considering how much weight to place on the various considerations in the habitual residence analysis, a court will factor in a child's age. For very young children, more weight will be placed on the shared intent of the parents because a young child will not form meaningful connections with people and places, whereas the impact of parental intent is more limited for older children who are "capable of becoming "firmly rooted" in a new country".
Rights of custody Rights of custody may arise by operation of law or from a judicial or administrative decision, or an agreement having legal effect under the law of the country of habitual residence.Hague Convention, Article 3. The explanatory report of the convention clarifies the meaning of wrongful as:
"the removal of a child by one of the joint holders without the consent of the other, is ... wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."Elisa Pérez Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ("Explanatory Report"), 71, at 447–48
The Convention specifies that “rights of custody” includes rights relating to the care of the child and the right to determine the child’s place of residence, while “rights of access” includes the right to take the child for a period of time.Hague Convention, Article 5.
Rights of custody may not be explicit or formal in order for them to be recognized by a court. In the Matter of K (A Child) (Northern Ireland), the Court ruled that the term rights of custody may include certain informal rights (called "inchoate rights"). In that case, the child lived with his maternal grandparents in Lithuania when, at the age of 7, the mother moved the child to Northern Ireland against the grandparent’s wishes. There was no custody order awarding the grandparents any rights of custody, but if they had applied for a custody order in Lithuania they would have likely been able to secure one.