Article by Ayeisha Khandia – Head of Family Department at Fountain Solicitors
Many of you may have heard of the Hague convention but never been sure of what it really is and how it could affect you. In brief, The Hague Convention on the civil aspects of International Child Abduction 1980 is unlike other laws about children. In summary, it is an agreement between the member countries that cases concerning children should usually be dealt with by the country where the child usually lived before he or she was “wrongfully removed” to another member country. It does not necessarily depend on the child’s citizenship but rather where the child was habitually resident. As at February 2015, there were 93 member states.
For example, you could have a case where 2 British citizens decided to relocate to, say Spain. They live there for a number of years although they have retained their British citizenship. They have a child who is born in England because the mother has decided that she wants her family around her when the child is born. She stays in England for a few weeks and returns to her husband in Spain where they continue to live for several years. The couple encounter problems and the wife says that she wants to go to England for 2 weeks to visit her mother. The husband agrees. When the wife is here, she decides that her marriage is over and tells her husband that she is not returning back to Spain.
In the case above, the child was habitually resident in Spain despite being a British citizen. The initial trip to England was not problematic but, when the wife decided that she will remain in England, if the husband is not agreeable to his child also remaining there, this could be treated as a wrongful removal. As each member country has a “central authority “set up to deal with these matters, the husband would make a report to the central authority in Spain and they would then contact their counterpart in England. A solicitor would be appointed for the parent in Spain through the Official Solicitor’s office and they would usually get legal aid.
Ayeisha Khandia of Fountain Solicitors says, “I dealt with a case last week where the central authority of a European country contacted our central authority requesting the return of my client’s child to that country. Had I not immediately attended the High Court to represent my client, the High Court judge here has the power to order an immediate return. As it was, I persuaded the court that it needed to hear the evidence from my client before making its decision”.
Hague convention cases such as those outlined above must be dealt with within a maximum period of 6 weeks. If it is proved that the child was habitually resident in the other member state, there is a presumption of return. There are cases where the return can be defended under Article 13 or for example where the child is of an age where he or she is old enough to decide where they live; or, as in my case, by arguing that the Hague Convention does not apply as the child has become habitually resident in England now. However, these cases are the exception rather than the rule.
A return does not mean that the court has decided that it is better for the child to live in that country as opposed to this. It merely underlines the principle that the courts of the other country should make that decision and one parent should not be allowed to bypass that system by a wrongful removal. It could be that, once they return, they can make an application for permanent relocation away from that country which could be granted depending on the circumstances.
Ayeisha Khandia says “I have dealt with a number of Hague convention cases over the years and they are both complex and fascinating. I have even dealt with a case where the British child was removed to another country and I had to make the referral under the Hague convention. I had to liaise with the foreign lawyer appointed for my client and the police when they eventually tracked down the child”.
These cases require detailed knowledge of the law and procedure and an ability to take urgent action on behalf of your client and prepare your case ready for trial within a very short space of time.
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