A return application after a child was kept abroad

The legal issue

Where a child who lives in England and Wales goes abroad with one parent - for a holiday, a family visit, an agreed trip - and is then not returned, the question is not immediately who the child should live with. It is which country's courts should answer that question, and whether the child should go back first.

The Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980, is given the force of law in the United Kingdom by Child Abduction and Custody Act 1985 s.1(2), which provides that the Articles set out in Schedule 1 to that Act have effect here. Article 3 of that Schedule treats the removal or the retention of a child as wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention, and where those rights were actually being exercised at the time, or would have been but for the removal or retention. Article 4 applies the Convention to a child who was habitually resident in a Contracting State immediately before the breach, and stops applying when the child turns sixteen.

Retention is the harder of the two to date. A removal happens on a day. A retention begins when the agreed arrangement is repudiated - when the return date passes, or when the other parent makes clear the child is not coming back - and fixing that date matters because it starts the one-year period in Article 12.

The child travelled abroad with the agreement of both parents for a temporary family visit. The left-behind parent held parental responsibility and had been actively involved in the child’s care and day-to-day life before the trip. The position changed when it became clear that the agreed return would not take place and that the visit was being treated as an indefinite move. Prompt steps were then taken to preserve the written record of the agreement, obtain advice and begin the appropriate Convention process.

The law this rests on

• Child Abduction and Custody Act 1985 s.1 (the Hague Convention; the Articles in Schedule 1 have the force of law in the United Kingdom)
• Child Abduction and Custody Act 1985 s.2 (Contracting States, specified by Order in Council, and the date from which the Convention applies)
• Child Abduction and Custody Act 1985 s.3 (Central Authorities - the Lord Chancellor for England and Wales)
• Child Abduction and Custody Act 1985 s.4 (judicial authorities - the High Court in England and Wales)
• Child Abduction and Custody Act 1985 s.5 (interim powers pending determination of a Convention application)
• Child Abduction and Custody Act 1985 s.8 (declarations by United Kingdom courts for the purposes of Article 15)
• Child Abduction and Custody Act 1985 Schedule 1 (the Hague Convention Articles having the force of law) - in particular Articles 3, 4, 5, 7, 8, 11, 12, 13, 15 and 16
• Family Law Act 1986 s.41 (habitual residence after removal without consent - a child under sixteen treated as continuing to be habitually resident in a part of the United Kingdom for one year, for the purposes of Part I of that Act)
• Child Abduction Act 1984 s.1 (offence of abduction of child by parent etc.) - in particular s.1(1), s.1(3), s.1(4) and s.1(4A)
• Children Act 1989 s.1(1) (the child's welfare is the court's paramount consideration - applies to the welfare decision, not to the return decision)

How we approached it

There are two quite different jobs in a Hague case, and the first thing to establish is which one this is. Where a child has been brought into England and Wales, the return application is heard here, and Child Abduction and Custody Act 1985 s.4 gives jurisdiction to entertain applications under the Convention to the High Court in England and Wales. Where a child who lived here has been taken or kept abroad, the return application has to be decided by the court of the country the child is in, and the route to it runs through the Central Authorities. Article 8 of Schedule 1 allows any person claiming that a child has been removed or retained in breach of custody rights to apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State, and Child Abduction and Custody Act 1985 s.3(1)(a) makes the Lord Chancellor the Central Authority for England and Wales. Article 7 sets out what Central Authorities must do - locate the child, take provisional measures to prevent further harm, try to secure a voluntary return, exchange information, initiate or facilitate proceedings for return, and make arrangements for the child's safe return. The work here is preparing an application that the receiving authority and the foreign court can act on quickly, and Article 8 lists what it must contain.

Before any of that, three things have to be checked rather than assumed. First, whether the Convention is in force between the United Kingdom and the other country. Child Abduction and Custody Act 1985 s.2(1) provides that the Contracting States other than the United Kingdom are those specified by Order in Council, and s.2(2) provides that the Order specifies the date the Convention came into force between the United Kingdom and that state and that, unless the Order says otherwise, the Convention applies only to wrongful removals or retentions occurring on or after that date. If the country is not a Contracting State for these purposes, there is no Convention application, and the case has to be run some other way. Second, whether the child was under sixteen at the relevant time and remains so, because Article 4 stops the Convention applying at sixteen. Third, what rights of custody existed under the law of England and Wales immediately before the retention, and whether they were actually being exercised - the two limbs of Article 3. Article 3 records that rights of custody may arise in particular by operation of law, by a judicial or administrative decision, or by an agreement having legal effect, and Article 5 defines rights of custody as including rights relating to the care of the child and, in particular, the right to determine the child's place of residence. Parental responsibility, and any existing child arrangements order, are where that analysis usually begins.

The retention is then dated precisely, because the date drives Article 12. Where a period of less than one year has elapsed between the wrongful removal or retention and the commencement of the proceedings in the state where the child is, Article 12 requires the authority concerned to order the return of the child forthwith. Where more than a year has elapsed, Article 12 still requires return, unless it is demonstrated that the child is now settled in the new environment. The one-year point is highly significant, but it is not an automatic bar to return. After one year, Article 12 still requires return unless it is demonstrated that the child is now settled in the new environment. The practical consequence is nevertheless serious: delay may introduce an additional issue that would not otherwise arise, which is why a retention case should be progressed promptly.

Where a determination of wrongfulness would help the foreign court, English law provides for one. Article 15 allows the authorities of the requested state, before making a return order, to ask the applicant to obtain from the authorities of the state of the child's habitual residence a decision or determination that the removal or retention was wrongful within the meaning of Article 3. Child Abduction and Custody Act 1985 s.8 allows the High Court, on an application made for the purposes of Article 15 by a person appearing to have an interest, to declare that the removal of a child from, or the retention of a child outside, the United Kingdom was wrongful within the meaning of Article 3. Obtaining that declaration is often the most useful thing an English court can do in an outgoing case.

The defences under Article 13 are narrow, and they are worth understanding precisely because they are so often misunderstood. Article 13 provides that the authority of the requested state is not bound to order return if the person, institution or other body opposing return establishes that the applicant was not actually exercising rights of custody at the time of the removal or retention, had consented to or subsequently acquiesced in it, or that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It also allows the authority to refuse return where 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 the child's views. Article 13 closes by requiring the authorities to take into account information about the child's social background provided by the Central Authority or other competent authority of the child's habitual residence. Two things follow. Consent and acquiescence are about the left-behind parent's conduct, so contemporaneous evidence of objection matters enormously. And the grave risk defence is directed at the risk on return, which is why arrangements capable of meeting that risk are so often the centre of the argument.

Article 16 does something people rarely expect. Once the authorities of the state to which a child has been removed, or in which the child has been retained, have received notice of a wrongful removal or retention in the sense of Article 3, they shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under the Convention, or unless a Convention application is not lodged within a reasonable time. So a custody application started in the other country does not run ahead of the return application; notifying the Convention claim is itself a protective step.

Speed is written into the Convention. Article 11 requires the judicial or administrative authorities of Contracting States to act expeditiously in return proceedings, and provides that if a decision has not been reached within six weeks from the commencement of the proceedings, the applicant or the Central Authority of the requested state may request a statement of the reasons for the delay. Article 11 requires authorities to act expeditiously. If no decision has been reached within six weeks from the commencement of proceedings, the applicant or the Central Authority of the requested state may request a statement of the reasons for the delay. It is a mechanism for accountability and expedition, not an automatic six-week deadline for final determination. In the meantime, Child Abduction and Custody Act 1985 s.5 allows a court in the United Kingdom to which a Convention application has been made to give such interim directions as it thinks fit for securing the child's welfare or preventing changes in the circumstances relevant to determining the application.

Two further points of English law sit alongside the Convention. Family Law Act 1986 s.41 provides that a child under sixteen who is habitually resident in a part of the United Kingdom, and who becomes habitually resident outside that part in consequence of being removed or retained without the agreement of everyone with the right to determine where the child lives, or in contravention of a court order, is treated as continuing to be habitually resident in that part for one year. That deeming operates for the purposes of Part I of the Family Law Act 1986 - the rules about when courts here may make orders about a child - rather than for the Convention itself, and it is one of the reasons an English court may still be able to make orders about a child who has been kept abroad. And Child Abduction Act 1984 s.1 makes it a criminal offence for a person connected with a child under sixteen to take or send the child out of the United Kingdom without the appropriate consent, which s.1(3) defines as the consent of the mother, of the father if he has parental responsibility, of any guardian or special guardian, of any person named in a child arrangements order as a person with whom the child is to live, or of any person who has custody, or the leave of the court under Part II of the Children Act 1989. Section 1(4)(a) exempts a person named in a child arrangements order as someone the child is to live with who takes the child abroad for less than a month, but s.1(4A) removes that exemption where doing so breaches an order under Part II of the Children Act 1989. The criminal provision is separate from the Convention and neither depends on the other.

Finally, and this is the point most worth making to a parent: a return order under the Convention is not a decision about where a child should live. It is ordinarily a decision that the child should be returned to the state of habitual residence so that any longer-term welfare and living-arrangements issues can be determined through the appropriate jurisdiction. It does not itself decide with whom the child should live in the long term. Article 16 reinforces that limited function by preventing the requested state from deciding the merits of rights of custody while the Convention return issue remains unresolved. Article 16 says as much by prohibiting the requested state from deciding the merits of custody in the meantime.

The outcome

The orders available in a Convention case are a narrow set. The court of the country where the child is may order the return of the child, may refuse to order return on one of the grounds in Article 13, or may order return on the basis of arrangements designed to address a risk raised under Article 13(b). Where more than a year has passed since the wrongful removal or retention, Article 12 still requires return unless it is demonstrated that the child is now settled in the new environment. In the United Kingdom, Child Abduction and Custody Act 1985 s.5 allows interim directions while the application is pending, and s.8 allows the High Court to declare that a removal or retention was wrongful within the meaning of Article 3 for the purposes of Article 15.

What governs the choice is Article 3 - whether the retention was wrongful at all - then Article 12 and the one-year period, then the Article 13 grounds, and throughout, the Article 11 requirement to act expeditiously. What is not decided is who the child should live with. Article 16 prevents the requested state from deciding the merits of custody until the return question is resolved.

The legal issue was addressed through the Convention framework, with the focus placed on the child’s habitual residence immediately before the retention, the rights of custody held by the left-behind parent and the point at which the temporary arrangement became a refusal to return. The available evidence was directed to whether the retention was wrongful within Article 3 and to the return process in the state where the child was located. The case illustrates that the outcome of a Convention application turns on the evidence, the timing of the application and any Article 13 case advanced by the person opposing return. No broader welfare determination was made through the Convention process.

Outcomes of this kind turn entirely on the evidence in the individual case, and on the law and practice of the country where the child is. Nothing here is a prediction or a promise about any other case.

What to take from this

• Retention is as much a breach as removal. Article 3 of Schedule 1 to the Child Abduction and Custody Act 1985 treats the retention of a child as wrongful on the same terms as removal, so a lawful trip abroad that becomes a refusal to return is squarely within the Convention.
• The date the retention began is the single most important fact. Article 12 requires return forthwith where proceedings begin within a year of the wrongful removal or retention, and after a year return may be refused if it is demonstrated the child is now settled in the new environment.
• Check the country before anything else. Child Abduction and Custody Act 1985 s.2 provides that the Contracting States are those specified by Order in Council and that, unless the Order says otherwise, the Convention applies only to wrongful removals or retentions occurring on or after the specified date.
• Rights of custody are wider than a court order. Article 3 says they may arise by operation of law, by a judicial or administrative decision, or by an agreement having legal effect, and Article 5 defines them as including the right to determine the child's place of residence.
• The defences in Article 13 are narrow and specific: that custody rights were not actually being exercised, that the left-behind parent consented or subsequently acquiesced, or that there is a grave risk return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation - plus the child's own objection where they have the age and maturity for it to count.
• Six weeks is the Convention's own benchmark. Article 11 requires authorities to act expeditiously and entitles the applicant or a Central Authority to request a statement of the reasons for delay if no decision is reached within six weeks.
• A return order does not decide who the child lives with. It decides which country answers that question - and Article 16 stops the country the child is in from deciding the merits of custody until the return question is resolved.
• The criminal law runs separately. Child Abduction Act 1984 s.1 makes it an offence for a person connected with a child under sixteen to take or send the child out of the United Kingdom without the appropriate consent, and the limited exemption in s.1(4)(a) falls away under s.1(4A) where an order under Part II of the Children Act 1989 is breached.