Blog Series: The Hague Convention – How it works and When it Applies

What is the Hague convention?

The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement created in 1980 to help return children who have been wrongfully removed from their home country or wrongfully kept in another country.

The goal is not to decide custody disputes, but to ensure that custody decisions are made in the child’s usual country of residence, not the country they were taken to.

The treaty operates under the framework of the Hague Conference on Private International Law, an international organisation that develops legal rules to manage cross-border disputes.

The Hague Convention on the Civil Aspects of International Child Abduction plays a crucial role in international family law. It focuses on one key principle: children should not be removed across borders to gain an advantage in custody disputes.

By prioritising the prompt return of children to their habitual residence, the Convention helps ensure that custody decisions are made by the courts best placed to decide them.

There are Two main purposes of the Hague Convention which are as follows:

1. Return the child promptly – If a child is taken to another country without legal consent, the Convention aims to secure their prompt return to their habitual residence.
2. Protect custody rights – It ensures that existing custody or access rights are respected internationally.

What is Wrongful Removal?

A child’s removal wrongful if:

1. The child was habitually living in one country.
2. A parent or guardian had custody rights under that country’s law.
3. The child was taken to another country without that parent’s consent or in breach of a court order.

For example:

• A parent takes a child abroad for a holiday but does not return them.
• A parent moves permanently to another country without the other parent’s permission.

If these conditions are met, the left-behind parent may apply for the child’s return under the Convention.

What counts as “wrongful retention”?

A wrongful retention of a child will follow a consensual removal.  This situation arises where, for example the left behind parent has agreed to or there is a court order for the child to go to a foreign country with the other parent for work or a holiday. However, the child does not return as planned or agreed. Here, the child is then ‘wrongfully retained’ by the removing parent.

Signatories of the Hague convention

The Hague Convention works between countries that are signatories and have accepted each other’s participation.

More than 100 countries are currently members, including:

• United Kingdom
• United States
• Australia
• Canada
• Most countries in European Union

If a child is taken to a non-signatory country, the Convention cannot be used, and recovery of the child is more complex, and will be dealt with in a separate blog.

Who can apply?

Applications can typically be made by:

• A parent with custody rights
• A legal guardian
• In some cases, an institution responsible for the child

Each participating country has a Central Authority that helps process Hague applications and coordinate with the other country.

Key Timelines

Timing is extremely important in Hague cases.

The one-year rule

If an application is filed within one year of the child’s removal, courts will usually order the child’s prompt return.

After one year

If more than one year has passed, courts may refuse to return the child if the child has settled into the new environment.

Six-week guideline

Courts handling Hague applications are encouraged to reach decisions within six weeks where possible.

First Steps to Take if Your Child is Abducted

Time is absolutely critical in abduction cases. If you suspect your child has been abducted or is about to be, you must act immediately:

• Call the Police: If the child is still in the UK but you fear they are about to be taken, call 999. The police can issue a “Port Alert” (an All Ports Warning) to flag the child’s name at all UK airports and sea terminals to prevent them from leaving.
• Seek specialist legal advice: Contact one of our team who specialises in international child abduction immediately: email Helen or me on hh@blanchardslaw.co.uk or ah@blanchardslaw.co.uk and mark your email as urgent. If your child is still in the country, we can help you apply for an emergency court order preventing the child’s removal.

Our planned blogs will cover the following commonly asked queries:

• I am not clear if consent has been given – what does consent really mean?
• What happens when there’s no treaty? Legal/diplomatic routes, delays, obstacles, what parents can expect.
• How can I defending an application made against you: domestic abuse factors, the importance of your written statement and enforcement.
• When are my children’s wishes and feelings considered?