“International Parental Child Abduction” is when one parent takes or retains their child, without the consent of the other parent, to live with them in another country.

A parent may simply leave the country with the child (known as “wrongful removal”), or the parent can go with the other parent’s consent but not then return as agreed, for example on a holiday (known as “wrongful retention”).

In every case of child abduction, early advice is crucial.

The ethos of the 1980 Hague Convention is for Courts to order the swift return of children to the country they have left, so the Courts there can properly deal with the question of their care and living arrangements.

If you have taken your child to another country, there are limited defences to stop the application for your child’s return:

Consent - the left behind parent consented to you taking your child to another country.

Acquiescence – the left behind parent indicated by words or actions that they did not seek the return of your child.

Child’s objection –the child does not want to be returned. The court would have to be satisfied that the child objects to being returned and that it is appropriate to take account of their views given their age and maturity.  It is worth noting that some countries will place greater emphasis on a child’s views than others.

This defence was successful in a Scottish case in 2020. A ten-year-old child was removed from Poland to Scotland by her mother. Her father raised an application for her return. An order was initially made by the court for the child to be returned to Poland. However, her mother successfully appealed this decision. The child’s views had been obtained by a Court Reporter, which set out clearly why she objected to being returned to Poland. The Appeal Court considered that the child was mature enough for her views to be taken into account and for considerable weight to be placed on the views of the child.

Grave risk of harm–you can show that there is a grave risk the child’s return would expose them to physical or psychological harm, or otherwise place them in an intolerable situation. This is the most widely used defence in 1980 Hague Convention proceedings. However, there is a high threshold for establishing “grave risk” to the Court. In considering such a defence, the Court must consider any protective measures that the Court in the other country could order which would mitigate the risk of harm.  If the Court is satisfied such orders would do so, then the return will likely be ordered.

In a recent Scottish case, a mother who had failed to return to the USA after a holiday to Scotland with her children, was successful in establishing the grave risk defence. Initially, the court had decided that the children should be returned. However, their mother appealed this decision. The Appeal Court considered the large amount of text messages evidencing abuse, the fact that the mother may have no access to legal representation in America and the fact that the father had already shown he would breach a US Court order. This showed that any protective measures in America may not be effective, in turn potentially exposing the children to harm or placing them in an intolerable situation where their mother was being abused. The father’s application for the return of the children was therefore unsuccessful.

Settlement –a child who has remained in the new country for more than 12 months may have become settled in the new country and should not be returned.

As with any legal process, it is important to seek specialised legal advice early in the process. If you think you have wrongfully removed or retained a child, it is important to consider the reasons behind this and act accordingly.  As with every decision concerning children, their welfare and interests should remain of paramount consideration to both parents.

Please contact our expert team if you have any questions. 

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