An article co-authored with Abby Westell, Partner at Rayden Solicitors, England
Statistics show that the increase of international mobility and cross-border families, enhanced by the growth in global staffing and expatriation, increases the complexity and potential for international parental child abductions, particularly in separated or conflicted families where custody issues have not been resolved. The children concerned are often young, the average age being around 6-7.
The object of the Hague Convention of 25 October 1980 (the “Convention”) is to secure the prompt return of children wrongfully removed or retained in another contracting state and to ensure that rights of custody and of access under one contracting state are effectively respected in the other contracting states.
The Convention establishes a mechanism for the immediate return of children who have been wrongfully removed or retained from their country of habitual residence. Wrongful removal of a child is where one of the child's parents removes or retains the child from the country of habitual residence in breach of the custody rights exercised by one or both of the parents.
This term refers to two different situations: (1) removal, is where the child is removed from the state of his or her habitual residence to another state without the appropriate consent, and (2) retention, is where a child is retained at the end of a lawful period of stay, such as visiting, staying or holiday rights.
When this situation arises, the person with custody rights has two options:
(a) They may refer the matter to the Central Authority of the child's habitual residence pursuant to Article 8 of the Convention, although there is nothing to prevent them from contacting any other contracting state that may be able to assist in securing the child's return.
If the child is in France, this request will be forwarded to the French Central Authority. In France, the public prosecutor, informed by the Central Authority, will refer the matter to the family court judge to request the return of the child. The holder of parental responsibility may voluntarily intervene in these proceedings to join the prosecutor's request, who remains the main party in the action.
In England and Wales, the International Child Abduction and Contact Unit (ICACU) should be contacted by the parent seeking return of the child. If that parent does not already have legal representation, ICACU will send the application to a solicitor on their panel, who has experience in international child abduction cases. An application is then made for public funding as cases of that nature are entitled to non-means, non-merits tested legal aid. An application is then made by the solicitor to the High Court on the parent’s behalf. Unlike in France, the parent is the main party to the proceedings.
(b) They may directly refer the matter to the competent judicial authorities of the state where the child has been removed to or retained, on the basis of Article 29 of the Convention.
When the child is wrongfully retained in France, the parent with custody rights may refer the matter directly to the competent family court judge to order the return of the child to his or her state of habitual residence. In this case, neither the Central Authority nor the public prosecutor is obliged to intervene, except to enforce the Court decision.
Option (b) is usually quicker than (a). However, it requires instructing a lawyer in the state concerned and to prepare the necessary supporting documentation to demonstrate that custody or access rights have been breached. When we deal with such matters in France, a successful outcome invariably depends on an efficient working relationship with the client’s lawyers in the state where the child is habitually resident. When there is a acrimonious relationship, it is very important that the custody and access rights are clearly documented in an agreement or Court Order and ideally supported by a legal opinion.
In England and Wales, it is also possible to go directly to a lawyer for an application to the High Court for the immediate return of the child. The procedure would be the same as referred to under a) for England and Wales.
It is very important to act quickly in the case of wrongful removal or retention. The right of return is guaranteed by the contracting states for one year from the wrongful removal or retention. After one year, the judicial or administrative authority will still order the return of a child who has been wrongfully removed or retained, unless it is demonstrated that the child is now settled in its new environment.
If it is not known to which country the child has been removed, contacting the police in the country of the child’s habitual residence is the best starting place as they can then liaise with Interpol to carry out searches. In England and Wales, a port alert can be granted such that all the ports i.e. airports, ferry ports, international train stations etc. would receive an alert to stop the parent and child if they tried to leave the country.
Focus on Preventive measures:
There are measures, often unknown to parents with custody rights, designed to prevent abduction when there is a suspicion that a parent is in the process of wrongfully removing a child.
In France, it is possible to (1) apply to the Prefecture for an objection to the child leaving the country, which is valid for 15 days in case of an emergency, or to (2) apply to the family court for a court order prohibiting the child from leaving the country.
In England and Wales, an application is made to the family court on an urgent basis for a prohibited steps order, to prevent the parent from removing the child. This can be made for a short period of time e.g. until the child is returned and the facts are heard in full by a family court judge, or for a longer period of time if it is felt that the threat of removal is sustained. An application can be made for seizure of passports and port alerts to be made. These are enforced by the Tipstaff, who is the enforcement officer of the High Court at the Royal Courts of Justice. Their role is to locate, take into protective custody or return children, as well as seize passports.