How Difficult Is it To Bring A Hague Application for the Return of an Abducted Child?

Few attorneys venture into this area of International Family Law, even though the process is straight forward. Initially, the left behind parent’s (or guardian’s) country, and the abducted to country, must be signatories to the Hague Convention.  A simple internet search at https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction will answer this question. Provided the child is under 16, and the left behind parent or guardian has “rights of custody” (husbands and wives in most jurisdictions before a court varies those rights, meet that requirement), and the left behind parent or guardian has to have been exercising those custody rights. The left behind parent or guardian must be in the child’s habitual residence. Next, if the Hague Application is brought within one year of when the child was wrongfully removed or wrongfully retained, the court in the abducted to country must order the return of the child unless one of the defences is established by the abductor. These defences involve, consent, acquiescence, grave risk of harm, the child objects to return (and is old enough and mature enough to object), or the left behind country does not observe human rights and fundamental freedoms. In upcoming articles, I will discuss habitual residence and the defences in more detail. If the left behind country is not the habitual residence of the child, the Hague application will not succeed.

Max Blitt KC
Spier Harben
Calgary, Alberta, Canada