PACT - Exceptions and Other Pitfalls

Exceptions and Other Pitfalls

A Hague Convention application will not necessarily mean your child is returned. Proceedings can be drawn out. Foreign courts may behave unpredictably. You should expect the following.

How long do I have to instigate an application for return?
You must do it as soon as possible. Article 12 of the Convention states that you can lodge an application within one year of the date of removal or retention. Your Central Authority can only forward your application if you know where your child is. Be active in the search for your child. Obtain the help of the Police and Interpol. If your child is found after one year, request that the time limit be extended. But be warned that the court may decide that the child is now settled in his or her new environment and refuse a return.

How long can I expect the proceedings to last?
The Hague Convention imposes an obligation on member states to effect the "prompt" return of children wrongfully removed or retained (Article 11). This is 6 weeks from the start of proceedings. If it takes longer, you have the right to ask why.

Exceptions: Grounds for refusal of a return

Your child has been in the foreign country for over 12 months and is settled in his or her new environment (Article 12).
Your child was not habitually resident in the country where you made the application for a return or he or she is 16 years old or older (Article 4).
You did not have "rights of custody" (either jointly or alone); or were not exercising these rights at the time of the removal; or had agreed or "acquiesced" in the removal or retention (Article 13 a).
Your child would be exposed to a "grave risk of physical or psychological harm if returned or otherwise put in an intolerable situation"; or your child "objects" to being returned and is mature enough to express his or her views (Article 13 b).
Your child's return would be a breach of its fundamental freedoms and human rights (Article 20).

Article 13 (a) — Consent or Acquiescence
Consent must generally be unequivocal. It must often be proved that the left-behind parent had agreed to the child's removal or retention. Acquiescence refers to the subsequent acceptance of the child's removal or retention. Trying to reach a settlement or an agreement with the abducting parent is ALWAYS in the best interest of the child. But be careful that a compromise is not construed as "acquiescence". Get advice from your lawyer and the Central Authority. Contact your national organisation or helpline. They may be able to appoint a Mediator to help you reach an amicable resolution without risk of the Article 13 (a) defence being raised against you.

Article 13 (b) — Grave Risk and Child's Objection
The Article 13 (b), paragraph 1, "grave risk" defence is usually interpreted narrowly by Member States. It has caused few return applications to be refused. It should only be upheld if a child is returned to a zone of famine or war or to a situation of serious abuse and neglect.

The Article 13 (b), paragraph 2, "child's objections" defence is more problematic. Member States have different ways of taking evidence and hearing cases. Some deem it inappropriate to interview young children. They are aware of the risk of indoctrination by the abducting parent. Returns will be refused only in an exceptional case.

Other States regularly ask children to participate in court hearings. This may draw out proceedings and your child's evidence may be negatively influenced against you. We are not aware of a young child's views having opposed those of the abducting parent. Where possible, you should establish contact with your child, and your Central Authority should press for speedy proceedings. Remember that possession is 9/10th of the law.

Article 19
States that the Convention is not intended to resolve custody disputes. Its aim is to return the child promptly, allowing the courts of the county of origin to decide on any subsequent custody issues. Your lawyer should be aware of this.

Article 20 — Breach of its Fundamental Freedoms and Human Rights
There have been very few reported cases of return orders being refused on the basis of an Article 20 objection.

Speed of proceedings
The merit of the Convention is in the speed of its proceedings (Article 11). Lengthy proceedings can jeopardise your chances of having your child returned. It gives the abductor more opportunity to influence or indoctrinate the child against you (for the purpose of Article 13 b). In addition, the longer your child remains in the foreign country, the more settled he or she would be (Article 12). Make sure that your lawyer and the Central Authority monitor your case well.

Enforcement of orders
Enforcement of orders cannot be guaranteed. Some States have no effective enforcement mechanisms. Others have separate proceedings for the return order and for its enforcement. This can cause delay and lead to the non-return of your child. In some Member States, non-compliance with an order is met by severe sanctions; in others with attempts to mediate. Rights of appeal against an enforcement order can differ as well. In some countries appeals can take several months. Be prepared.

Undertakings/Protective measures
Undertakings usually refer to conditions for return imposed by a foreign judge. They may address the wellbeing of the child and the abducting parent. Protective measures usually refer to steps a judge may put in place to protect a child upon return. This may include the potential arrest of the abducting parent on his or her return. So it may be advisable to seek the removal of criminal charges or give assurances to the court that the child and the abducting parent will not be returned to an intolerable situation.

Habitual residence
The Hague Convention is based on the principle that custody decisions should be made in the child's home country (place of habitual residence). The concept of habitual residence is not defined. The period you need to live in a country to be habitually resident varies from country to country. In some Member States, habitual residence can be established in a matter of weeks. The abducting parent can thus benefit by applying for a change of residence soon after the abduction has taken place. This may cause a return order to be refused.

Access rights
The Convention seeks primarily to secure the 'prompt' return of children wrongfully removed to or retained across international boundaries. But Article 1 makes it clear that the objectives also include securing "protection for rights of access" and "effective respect" for such rights. The writers of the Convention recognised that the issue of contact can have a link to the phenomenon of abductions; that some abductions were triggered by parents who were unable to gain access to their children living abroad. But as a whole, the Convention has not provided an effective means by which right of access has been established, protected or regulated. If the two countries concerned are members of the European Union and if you have an existing order granting you access rights, the European Convention on the mutual recognition and enforcement of orders may be a means for you to have that order enforced.

Positive developments
In recent years many new countries have committed themselves to the Convention. This is a testimony to its growing relevance and importance. But for the Hague Convention to work effectively, it must be consistently interpreted and enforced. The following improvements have taken place in the past few years:

The German authorities have worked hard to improve their courts' handling of Hague Convention cases. But there is still a problem with regard to old cases.
Regular Judicial Conferences have explored different countries' applications of the Convention and ways to improve co-ordination between Central Authorities.
The Permanent Bureau of the Hague Conference has promoted and assisted in organising international judicial seminars. It is also planning a Special Commission to discuss the improvement of cross-borders rights of access and judicial communication between countries.
At the European Union level, a Council Regulation (EC) No. 1347/2000 set out rules on jurisdiction and recognition and simplified enforcement of judgments in matrimonial matters.
In July 2000, the French Government presented an initiative aimed at facilitating, through the abolishment of exequatur, the exercise of cross-borders rights of access for children of divorced and separated couples within the EU.
At the IVth Special Review Commission in the Hague, a series of recommendations were agreed, including the development of a guide of good practice to help current and new Member States implement the Convention.
In September 2001, the European Commission put forward a proposal extending the Council Regulation (EC) No. 1347/2000 and the French proposal to cover all decisions on parental responsibility. This proposal is currently under review.