Blog 3: Non‑Hague: What Happens When There’s No Treaty?

In Non‑Hague situations, what happens when there is not treaty in place is a question many parents face in these difficult circumstances.

When a child is wrongfully removed from England and Wales to another country or retained overseas without the consent of a parent who has parental responsibility, the 1980 Hague Convention is often the primary legal mechanism used to secure the child’s return. This treaty governs the process that should be followed to help a parent have their child returned.

However, many parents are surprised to discover that not every country operates under the Hague Convention with the United Kingdom. These are known as non‑Hague cases, and the legal landscape can be more complex, but also slower and far less predictable.

What Is a Non‑Hague Case?

A non‑Hague case arises when a child has been taken to, or retained in, a country that is either:

• Not a signatory to the Hague Convention; or
• A country with which the United Kingdom does not have treaty relations under the Convention.

Please note, for children abducted to Pakistan from the UK, parents should consider the Pakistan Protocol, which is an agreement reached between judges in England and Wales and Pakistan.  It aims to safeguard children and return them when wrongful removed.  Whilst this arrangement is in place, the Protocol has not be enshrined in Pakistani law, and therefore the Protocol simply aims to assist judges in England and Wales and Pakistan in their decision making.

The UK has a similar judicial agreement with Egypt.

The Immediate Impact of There Being No Treaty

Without the Hague Convention’s return mechanism, there is no international obligation on the foreign state to return the child/children simply because an English court says they should be returned. Instead, parents must rely on either the High Court of England and Wales, local laws in the country that the child has been abducted to/from and sometimes negotiation with the help of solicitors and/or organisations such as ‘Reunite’.

This means that:

• Foreign courts may refuse to recognise English court orders.
• The child’s return is not automatic.
• Proceedings can take months or years.
• Outcomes may depend heavily on the legal system and cultural approach of the destination country.

Despite the challenges, parents are not without options.

Abduction to this country

The High Court retains inherent jurisdiction in international child abduction matters, meaning that they still retain power to make decisions to prevent unfairness or abuse of process in order to protect children. The High Court still may look at the principles and defences set out in the Hague Convention – although the overriding objective is the child’s welfare.

The most common order to seek from the High Court is a Wardship Order.

If the order is granted an a child/children are made ward(s) of court, the High Court will then determine what should happen to the children and make decisions accordingly in relation to them.

However the Court may also make any of the following orders:

• A declaration that the child has been abducted so that it is formally recorded.
• Location orders – to determine the location of the child/children in the event that a third party knows of their whereabouts.
• Port alert orders – to put all the ports nationally on alert so that the child/children cannot be removed from this country.
• Passport orders – to be made where an abduction has not yet taken place and there is a legitimate fear that there will be abduction and therefore passports for the child/children are seized.
• Orders declaring the child’s habitual residence.
• Orders requiring the return of the child/children to the country that they were abducted from.

While these orders may not be directly enforceable overseas, they can be important evidence in subsequent foreign proceedings. Once the orders are made, the Tipstaff, who is the enforcement officer of the High Court, enforces the orders made usually with the help of the police or bailiffs.

Once the child/children have been located and the orders served on the abducting parent, the Court will determine whether the child/children should be returned.  The Court’s primary concern is the welfare of the child/children. If there are concerns about the safety of the abducting parent and the children in the jurisdiction that they have moved from, the Court can place ‘conditions’ on a return order.  Such conditions on a parent can include:

• Payment of travel fares
• Payment of maintenance or school fees
• Undertakings not to harass the other
• Undertakings to apply in the other jurisdiction to enshrine the orders made in England

Abduction from this country

In most non‑Hague cases, the left‑behind parent will eventually need to instruct lawyers in the country where the child is located and commence proceedings there.

Those proceedings may involve seeking recognition of an English court order that was obtained previously. Of course, the success depends largely on local law rather than English law. At Blanchards Law we have developed relationships with lawyers in other jurisdictions to assist our clients, and it is not uncommon for us to work with them to obtain orders that they advise are most effective in their jurisdiction.

The Role of the Foreign, Commonwealth and Development Office (FCDO)

The Foreign, Commonwealth and Development Office (FCDO) can also provide advice on the practical arrangements for a child’s return.

The FCDO can provide practical assistance and support to parents. This may include helping parents understand their options and connect them with relevant organisations, such as:

• Providing information about local legal systems.
• Supplying lists of local lawyers.
• Contacting local authorities.
• Monitoring the progress of proceedings.

However, parents should understand the limits of diplomatic assistance. The FCDO cannot:

• Force another country to return a child.
• Override foreign court decisions.
• Act as a lawyer.
• Pay legal costs.
• Remove a child from another jurisdiction.

Mediation and Negotiation

International family mediation is encouraged because court proceedings can be costly, uncertain and lengthy. A negotiated agreement may provide a faster solution than litigation across multiple jurisdictions.

Delays and Common Obstacles

Parents involved in non‑Hague cases should be prepared for delays.

Common obstacles include:

• Jurisdictional Disputes: the foreign court may consider itself the appropriate forum to determine all issues relating to the child.
• Recognition Problems: an English order that would ordinarily be respected within England and Wales may have little or no enforceability overseas.
• Language and Cultural Barriers: parents frequently need translators, local lawyers, and expert evidence about the foreign legal system.
• Cost: running proceedings simultaneously in two countries can be extremely expensive, with legal fees, travel costs and translation expenses accumulating quickly.
• Enforcement Difficulties: even if a favourable order is secured, enforcing that order in practice can present further challenges.

Reunite – Mediation

Parents should also consider mediation, which can often speed the process of resolve matters.  The charity Reunite can assist parents with their specialist trained mediators, to accommodate parents in different jurisdictions.

What Can Parents Realistically Expect?

Perhaps the most important message for parents is that non‑Hague cases rarely produce quick solutions. However, taking the right steps early on is crucial to obtain the right outcome for the child/children.

Blanchards Family Law can provide early specialist advice, prompt action, and a coordinated strategy involving either foreign lawyers, the FCDO and other organisations such as Reunite, with the aim of significantly improving the prospects of securing contact with a child or achieving their return.

If you need support on this topic, call us today on 03333446302