Article 21 Hague Convention – International Child Access

International child law is a specialised area of law that addresses the unique challenges faced when children and families are affected by issues that cross national borders. This field covers a wide range of matters, including parental responsibility, child abduction, and disputes over child custody involving different countries. The primary aim of international child law is to safeguard the best interests and welfare of the child, ensuring their safety and stability regardless of where they are located.

To achieve this, various international treaties and conventions have been established, with the 1980 Hague Convention on the Civil Aspects of International Child Abduction being one of the most significant. This convention sets out clear procedures for the prompt return of children who have been wrongfully removed or retained across national borders, and for the protection of parental rights. Legal proceedings in international child abduction cases can be complex, often involving different national laws and legal systems. Therefore, it is essential to seek legal advice from a qualified person with experience in international child law to navigate these challenges effectively and to ensure the child’s best interests are protected throughout the process.

The Hague Convention on the Civil Aspects of International Child Abduction (1980) is the main international agreement which regulates international child abduction. The Convention was designed to protect children internationally from the harmful effects of their wrongful removal or retention. The purpose was to establish procedures to ensure their prompt return to the state of their habitual residence, which refers to the country where the child has their main home and strongest connection, and is crucial for determining jurisdiction in international child custody cases, as well as to secure protection for rights of international child access.

The focus of the Hague Convention is to ensure that the children’s interests are of paramount importance when dealing with issues of custody when parents live in different countries, as international custody disputes can involve multiple legal systems and outcomes may depend on the countries involved. In custody disputes, the welfare of the child is the paramount consideration for the courts.

Article 1 of the Hague Convention confirms the objectives of the Convention which are as follows:

1. To secure return of children who have been wrongfully retained or removed in any contracting state
2. To ensure the rights of custody and access are respected in other countries that are contracting states.

The Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.

It is important to note that not all countries are parties to the Hague Convention, which can complicate international child abduction cases and may require alternative legal approaches.

With the benefit of the Hague Convention, a parent can apply to the courts for the return of the child providing the child has been wrongfully removed or retained in a country which is a part of the Convention. The Convention specifically applies to children who were habitually resident immediately before the wrongful removal or retention, which determines the jurisdiction for return proceedings and the scope of the Convention’s protections. Parents can also rely on Article 21 Hague Convention to establish international child access with their child who may be living in a different country to them.

The Hague convention is made up of countries who formed a part of international treaties which agreed to follow the rules listed in the convention. Currently there are 91 members to the Hague Convention. These include the United Kingdom, United States of America, most of Europe including Spain, France, Italy, and Germany as well as countries from the American continent, Asian countries and Australia and New Zealand. However, not all countries are signatories to the Hague Convention, which can affect the options available in international child custody cases.

Article 3 of the Hague convention describes the situation in where the removal or retention of a child is wrongful. This is where the removal or retention is:

1. In breach of the custody rights of a person either jointly or alone in the habitually resident state.
2. The custody rights which have been breached would have been exercised if it wasn’t for removal or retention of the child.

The rights of custody apply to a child who was habitually resident immediately before the breach took place. The Convention specifically applies to children who were habitually resident immediately before the wrongful removal or retention, which determines the jurisdiction for return proceedings and the scope of the Convention’s protections.

Determining a child’s habitual residence is the first step in any international custody

The convention concerns custody and access rights. The rights of custody under Article 5 concern the rights relating to the care of the child, the child’s place of residence, and important aspects of the child’s upbringing. Custody attributed by law or court order determines parent custody and the legal rights recognised in cross-border cases, including decisions about the child’s place and upbringing. According to the same article, the rights of international child access relate to the right to take a child to a place other than the child’s habitual residence place for a limited time. The relevant law of the child’s habitual residence governs custody rights.

A child’s habitual residence is the country they consider their true home and is crucial in determining jurisdiction in custody cases, such as those involving a residence order.

International child custody cases can take many months or even years due to their complexity, and in some situations, parents may need to seek temporary child custody while the case is being resolved.

Article 21 Hague convention relates to the rights of access and deals with the protection of the rights outlined in Article 5. This covers situations where an application is made to consider arrangements to exercise the rights of access. This is also known as international child access. The access relates to parents who do not have custody when parents live in different countries.

Under the regulations of this article a parent may need to apply for access to a child where the child is living abroad in one jurisdiction and the parent is in another. The application, along with all relevant documents, must be submitted to the appropriate judicial or administrative authorities, Central Authority, or other competent authority in the country to which the matter applies. Legal aid may be available to assist with the application process. The Central Authorities are bound to play a crucial role in international child arrangements by promoting the enjoyment of access rights and removing any obstacle which relate to the international child access.

If a child has been wrongfully removed or retained in a country outside of the UK and the child’s habitual state of Residence is the UK then the English Central Authority will need to be served with the application. The matter will then be allocated to a specialist lawyer in England who can process the application and progress with the works for International access. The judicial or administrative authorities of Contracting States are required to act expeditiously in proceedings for the child’s return under the Hague Convention.

The Central Authority in the United Kingdom is the International Child Abduction and Contact Unit. The International Child Abduction Contact Unit acts as the Central Authority for England and Wales for the operation of the Hague Convention 1980, Brussels IIa (Council Regulation) the 1980 European Conventions on recognition and Enforcement of Decisions concerning Child Custody of Children and on Restoration of Custody of Children) and the operation of the Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children).

When you no longer have contact with your child because they are being kept abroad, whether in international custody cases or other international cases where the child lives in another country, you will need to apply to contact your children or to enforce a court order from the family court abroad. Private international law governs the rules and procedures for cross-border child access cases, including those under the Hague Convention. To establish international child access through Article 21 Hague Convention, you will need to contact the International Child Abduction and Contact Unit, who will be able to forward an application on your behalf to the relevant country, and seeking legal advice is important in complex situations. Administrative authorities in both countries play a key role in facilitating the process, including locating the child and assisting with legal and administrative steps. In some cases, court proceedings may be necessary to enforce access rights.

The ICACU will only forward an application under Article 21 Hague Convention to a county which is a signatory to Hague Convention 1980 or, Brussels IIa (Council Regulation), or The 1980 European Conventions on recognition and Enforcement of Decisions concerning Child Custody of Children and on Restoration of Custody of Children) or The Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children) and the application concerns a matter covered by one of the treaties between the UK and the other country.

It is therefore imperative that before any application under Article 21 Hague Convention is considered you check whether the country is a signatory country. The application form is available on the Government website and is the same form used in Hague convention cases involving return of the child, international access rights, or enforcement of an existing order.

Under Article 21 Hague Convention, when the application is sent to the International Child Abduction and Contact Unit, the competent authority in the UK is responsible for processing the application made as a contact order under the Children Act 1989. This means the matter will be dealt with in the UK under the law of England and Wales, and the decision making process will be governed here rather than by the foreign country where the child is now residing. The outcome of such applications is determined by a judicial or administrative decision, in accordance with the relevant law. An application under Article 21 Hague Convention is effectively a private law case being opened in the UK similar to a case under the Children’s Act 1989.

The issues which are usually determined under the rights of international child access are contact, spending time during holidays with the child, or taking the child to a different place or for a holiday for a limited time.

Applications for international child access under Article 21 will usually be made where the parents have been unable to reach an agreement for custody and are in separate countries.

If your child has been wrongly removed to or retained in a country which is not a signatory to the Hague convention, then if agreement is not possible you may need to take legal action there to seek the return of the child or secure access. In such an event, you will need to consider trying to reach a mutual amicable agreement with the other parent for the return of the child or get access to your child. You also have the option of commencing family law proceedings in the country to which your child has been wrongfully taken to or retained in, while also considering related issues in other jurisdictions and any connected legal matters. However, it is important to note that the relevant law and legal system of that country will apply, so you should seek advice from a lawyer experienced in international family law that reflects your specific circumstances and the countries involved. Alternatively, you have the option of filing a criminal case for child abduction.

Grandparents and aunties and uncles often wonder whether they have international access rights to children who live abroad. Under the UK law people who do not hold parental responsibility have no automatic right to child access. Permission, therefore, needs to be sought from the court first to make an application for contact. If successful, the courts will then consider the matter. In such cases, the person alleged to have wrongfully removed or retained the child may be subject to such a restriction by the court, especially under international child custody frameworks. The court also considers the rights and best interests of children wrongfully removed when making its decisions.

However under the case of A & B v C (2018) EWHC 2048  was at the centre of attention whether considering whether Article 21 Hague convention applied to a non-parent. In this case the non-parent was the maternal grandmother and maternal grandmother. The case concerned a child who was aged 7 at the time. The child’s mother had died and at the time of the mothers death, the child was living with the mother and maternal family in Poland. Following the death of the mother the father collected the child and lived with him in Poland with the paternal grandparents. In 2017 the father returned to England leaving the child with the paternal grandparents before he bought the child to England to live with him the same year.

The father did not allow the maternal family any contact and stated the child is not ready to commence any relationship with the maternal family yet. The mother had had signed a declaration prior to her death stating that the maternal grandmother had authorisation to exercise custody rights over the child and made a will to such an effect. Whilst concluding the case the court directed that the Article 21 Hague Convention applied to both the maternal grandmother and the aunt. The reasoning behind this was that both the maternal grandmother and maternal aunty were important people, and it was important that the child maintains a personal relationship which fell under international child access rights.

Article 4 of the Hague Convention makes it clear that the convention applies to children prior to them attaining the age of 16 years. This means children who are aged 16 or above will not be considered to be subject of Hague Convention child custody.