This post was going to be a postscript to the previous one in which the Regulations that I write about below were first mentioned. The length of it, however, meant that it could not on any stretch of the imagination sensibly be described as ‘a postscript’. So it is being posted on its own – the content is deserving of specific mention in any event.
Child abduction cases coming before courts in the UK are now partly concerned with the ‘Brussels II Revised’ Regulations as well as the Hague Convention itself. The official title of these Regulations is Council Regulation 2201/2003 and, for those who are interested, I am placing a permanent link to the Regulations on the Materials Page of this website. The Regulations are lengthy and are not solely concerned with cases of child abduction but with procedures to follow in family law cases more generally. They came into being to deal with issues of enforcing family law related judgments in countries other than that in which they were made, and to determine which country such cases should be decided in when there is a choice in this regard, as there often will be when relationships involving nationals of more than one country break down. The Regulations exist to, in their own words and in the context of the child abduction provisions, ‘complement’ the Hague Convention itself.
The preamble of the instrument states as follows in relation to abduction situations:
(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. (18) Where a court has decided not to return a child on the basis of Article 13 of the 1980 Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seised, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law. (19) The hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable.
The detailed provisions that relate to child abduction cases start at article 10 of the Regulations. This reads as follows:
Article 10 Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
What this means is that, in international parental child abduction cases, the courts of the country that the child was abducted from will deal with any legal proceedings provided that the child was habitually resident there at the time of the abduction – this is likely to be the case in most Hague Convention cases as, otherwise, the proceedings are unlikely to have been brought in the first place. The country will continue to deal with the proceedings until the child becomes habitually resident elsewhere and provided that certain additional conditions (points (a) or (b) above) are met. The conditions are that everyone (parents/guardians, local authority etc) agrees to the transfer abroad of the proceedings or the child has resided in the country where it has suggested to transfer the proceedings to for at least one year after the fact of the child’s residence abroad became known to other people involved in the case and that at least one of the (further) conditions at points (i) to (iv) above are satisfied.
Article 11 of the Regulations then goes on to say as follows:
Article 11 Return of the child
1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Convention”), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.
4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.
6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.
What this means is that, in Hague Convention cases, the child involved in the case must, subject to appropriate allowance for his or her age and maturity, have the opportunity to be heard in the proceedings. Further, proceedings must be processed as quickly as possible – this means within 6 weeks unless exceptional circumstances mean that this is impossible. A court cannot refuse to return a child under the Hague Convention’s article 13 (b) ‘serious harm’ defence if it is satisfied that adequate protection arrangements are in place. Finally, if a requested return is not to be ordered the party requesting that return has to be given an opportunity to be heard.
Much of this is uncontroversial in the UK as there are separate procedures in place for giving vent to the wishes and feelings of children involved in family cases in any event and, in terms of abduction case, these tend to be dealt with quickly anyway – when they are delayed, that is often the result of onward appeals bring brought by the losing party. What is of interest is that the article 13 (b) defence can be repelled by evidence that there would be adequate protections in place for the child. This is an important guard against unfounded allegations of violence preventing the return of a child to its home. Such allegations are often deployed in family cases, usually to cast one side or the other (or, increasingly, both) in a bad light. Such allegations have a potential tactical advantage in terms of custody and contact issues (and, by extension, on financial settlements). Such allegations are also made in abduction cases to cut off contact altogether with a left behind parent in cases where return is otherwise likely to be required but for the operation of the article 13 (b) defence. The defence, as drafted, brings with it the potential for injustice in cases where allegations are made and wrongly believed by the courts. The innovation in article 11 (4) of the Regulations is that in cases where a court (wrongly) finds that a child would be at risk of harm, the return can still take place if adequate protections are in place to prevent the feared harm. The defence is not now therefore an absolute one and has a much reduced potential for injustice.