The Hague Convention on the Civil Aspects of International Child Abduction of 1980 (the Convention) is one of a large number of conventions signed in the Hague but it stands out as possibly the most well-known – why? Probably because it deals with the emotional and sometimes highly publicised issue of child abduction.
The Convention’s aim is to have children swiftly returned to their country of habitual residence when someone – usually a parent – takes them from, or prevents them from returning to, that country in breach of the other parent’s rights.
When the Convention was first conceived, it was expected that it would mainly prevent fathers from turning up at school gates, bundling their children into fast cars and taking them off in clouds of dust. But the last four decades have shown that the reality is very different: most abductions involve no physical violence or spiriting-away of children in the middle of the night. Instead, the typical abductor is the mother and abduction occurs when – perhaps after a stay with the children in her original home country – she can’t bear to return them to the country where they were being brought up, her relationship with the children’s father having ended.
Abductions fall into two categories, either wrongful removal or wrongful retention:
• wrongful removal includes the situation where a parent disappears with his child and takes her to another country; whereas
• wrongful retention occurs where both parents agree their child should be taken abroad (so the child leaves her country of habitual residence temporarily and legally) but, when that stay abroad is ended, the accompanying parent can’t bear to return her.
Ninety-eight countries are signatories to the Convention, including all EU countries, as well as the USA, Canada and Australia. But much of Africa, the Middle East (with the exceptions of Pakistan, Israel and Iraq) and China aren’t signatories: so the safety-net created by the Convention still has large holes in it.
However, signatory status does not mean the same level of application in all the countries that have signed it. Just within the EU, there are vast differences in speed and thoroughness when it comes to implementing the Convention: vigorous appliers include the UK and Germany; others (such as Poland and Spain) are less effective, failing sufficiently to centralise the hearing of Convention cases in expert courts, falling down on educating judges and lawyers in terms of the Convention and insufficiently funding the government authorities responsible for facilitating the Convention’s application within their borders. In such countries, a Convention case can end up being heard by a judge with little or no experience of the Convention, and sometimes the lawyers involved know too little about the Convention too: when that happens, it’s a case of the blind leading the blind.
A trap that inexpert courts may fall into is deciding not to return a child to her country of habitual residence because such return will put her at grave risk; however, the bar for assessing whether grave risk exists should be a high one and, indeed, the EU has taken steps to try to ensure this grave risk defence is not used to prevent children being returned from one EU state to another.
A lack of experience in Convention cases, can also result in the court considering and giving weight to welfare-based questions, such as:
• who should the child best live with?
• is she happy living away from her country of habitual residence?
• was her left-behind parent paying enough towards her 
upkeep?
Such questions should rarely be relevant in Convention cases, and are ones that should instead be decided by the courts of the child’s country of habitual residence.
Strip such (what should be irrelevant) issues out of the equation, and a court required to consider a Convention claim has, in fact, relatively limited questions to decide:
• first, was the country from which the child was abducted her country of habitual residence? (here, looking at where the child was being schooled is important, as may be the length of time she’s spent living in different countries during her life);
• secondly, does the left-behind parent have rights which have been breached by the abduction? (generally, mothers and married fathers will have, as will fathers who’ve recognised a child as theirs); and
• thirdly, is there a valid defence which means a return of the child should not be ordered? (an older child’s strong objections to return may be relevant here, as too may be her being well settled in her new country, should the left-behind parent have waited too long before bringing a Convention claim).
© 2018 Legal Advice in Spain, S.L.
For more information about this topic, or to obtain any other legal advice concerning Spain, please email cl@domenechabogados.com
