Hague convention defences in child abduction cases

When a child is taken away by a parent without the other’s agreement, it can feel overwhelming and deeply distressing.

If the situation involves moving the child across borders, the 1996 Hague Convention often applies.

This international agreement steps in, particularly if the case is outside the scope of EU laws, like Brussels II bis.

We’re here to help you understand how the Hague Convention works and what defences might apply, focusing on a real-life example: the case  H v K [2017] EWHC 1141 (Fam).

How the Hague Convention helps protect children

The Hague Convention is designed to protect children from being wrongfully taken from their home country.

Its main aim is to return them to their usual place of residence as quickly as possible. If a court in one country has already decided where a child should live, any other country that has signed the Convention should support that decision and help return the child.

In the case of H v K, the court made it clear that children who are unlawfully removed should be returned promptly. This principle guides how we approach all child abduction cases.

Can a child stay in the new country?

Although the Hague Convention prioritises returning children quickly, there are some situations where a court might decide not to send the child back.

Under Article 13(b), the court can refuse if returning the child would put them at serious risk of physical or emotional harm, or in an unbearable situation.

In H v K, the mother tried to use this defence, arguing her children would be at risk if they were sent back to the USA. However, the court disagreed, saying there were enough protections in place, like therapy and emotional support, to keep the children safe.

Another defence under Article 13 allows the child’s own feelings to be considered.

If a child is old enough and mature enough, the court might listen to their views on whether they want to return.

In H v K, the children did not want to go back to the USA. The court respected their opinions but still decided that returning was in their best interest, particularly as it would help them maintain a relationship with their father.

What we can learn from H v K

The H v K case shows how the Hague Convention works in practice and how defences under Articles 13 and 13(b) can play out.

The court ultimately rejected the mother’s arguments because the safety measures in the USA were deemed strong enough to protect the children.

The case highlights the importance of thinking about the child’s long-term welfare, including maintaining important relationships, even if the situation is extremely difficult.

We understand that facing an international child abduction case is incredibly stressful, but the Hague Convention is there to protect your child’s well-being. Our aim is to guide and support you through the legal process, ensuring your child’s best interests are always at the heart of the adecisions made.