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Parental international child abduction – subtleties of the Hague Convention

By March 1, 2018October 25th, 2021No Comments

A very complex case recently heard in the UK involving two Australian children has provoked discussion about the nuances of aspects of the Hague Convention on international child abduction.

The Supreme Court case concerned an Australian father and a mother with dual Australian/British citizenship and their two young children.  After the marriage broke down, the mother took the children from Australia to the UK, with the agreement of the father, initially for eight weeks, but extended by agreement between the parents for a period of up to a year.

The mother had originally intended the trip to be a visit “before returning to work from maternity leave” but after several months, she apparently decided to stay in the UK, giving notice to her Australian employer, looking for work in England and enrolling the older child in a local pre-school.

The father was able to discover that the mother had applied for British citizenship for the children without informing him, and he then proceeded to make an application for the children to be returned to Australia under the Hague Convention on civil aspects of international child abduction.

The problem was, his application occurred during the year in which he had initially agreed the children could remain in the UK.  As such, one of the two questions the UK courts eventually needed to answer was: can there be a wrongful retention before an agreed period of absence expires?  The other question in dispute relates to the concept of ‘habitual residence’.  Specifically, if by the time of the act relied on as wrongful removal or retention of the child, the child is habitually resident in the destination country, can the child’s ‘summary return’ under the Hague Convention take place?

In this international child abduction case, the original trial judge had allowed the children to stay in England, which was appealed. Although one appeal judge found the children should stay, two other judges disagreed and ordered a rehearing. The Supreme Court has now again failed to deliver unanimous agreement, with two of the judges wanting a rehearing—all of which indicates the extremely complex issues at play with international child abduction.

Legal experts say the case reveals the difficulties of international child abduction matters involving situations where a parent has taken a child overseas with the agreement of the co-parent that the trip will be of a certain length of time, as well as in cases where a return date is unclear.

The courts will look at both the travelling parent’s intentions regarding the children as well as their acts in order to determine if a breach has occurred.  But determining intention is not as easy as it sounds.  As the Supreme Court judges discussed, it is difficult to determine the precise timing that an intention is formed–but under the Hague Convention, timing is everything, since the child’s return needs to be prompt, before they risk becoming “habitually resident” in the destination country.  Intention also cannot just be a person’s internal thinking but there has to be an “objectively identifiable act of repudiation” (of the decision to return the children).

There are also difficulties in determining when the exact onset of a wrongful retention occurs, but this is also crucial when determining a child’s habitual residence:

“It is often difficult retrospectively to decide when wrongful retention began. It may be the outcome of a gradual change of attitude on the part of the travelling parent. Retention in the country travelled to may be acquiesced in by the left-behind parent, even if she or he suspects that the travelling parent may be in the process of forming an intention not to return the child to the country where she or he was habitually resident. If the child has formed relationships in the travelled to country and is well settled there (albeit as a result of the travelling parent’s covertly formed intention not to return him or her) do the best interests of the child obtrude on the question of where her or his habitual residence should be found to be?”

In the present case, one judge outlined why it was felt that the father should be able to argue the wrongful retention had occurred even before the end of the agreed travel period:

“To insist that wrongful retention can only occur at the end of an agreed period of absence could lead to absurd results; would encourage dissimulation on the part of the travelling parent; and would permit habitual residence to be acquired by the perpetration of deception on the left-behind parent.”

Ultimately, the takeaway seems to be that even if the travelling parent has an agreement with their co-parent to only keep the children in another country for a specifically limited time period, it’s critical that the terms of the agreement be made absolutely clear and the agreement should be ratified by a court.

Source: Law Gazette

Read the case

Do you have any concerns with a co-parent’s travel plans or need assistance with having your child’s name placed on the Airport Watchlist, or help with other parenting matters such as applying to a court to issue a child recovery order? Please contact Canberra family lawyer Cristina Huesch here at Alliance Family Law on (02) 6223 2400 asap to discuss your particular situation.

Read our blog on co-parent travel

Read our blog on recovery orders

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please call Alliance.

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