Nicola Watson

The law

The Hague Convention on the Civil Aspects of International Child Abduction 1980 is the main legislation in this area.

Upon receiving an application to order the return of a child, the courts in the country to which the child has been taken (the foreign court), will be asked to consider whether the child has been wrongfully removed. Has the child been taken out of their home country by a parent or guardian without the consent of the other parent who has custody rights? Wrongful retention also occurs when a child is kept in a foreign country beyond an agreed timeframe, for example if consent was given to a holiday for a specified period but the child has been retained abroad beyond that. In addition to showing that no consent was given, the other parent would have to show that they were exercising their rights of custody, i.e. by having contact with the child, at the time of removal or that they would have been but for the removal.

If the foreign court finds that the child has been wrongfully removed or retained in a country which is not the country of the child’s habitual residence, then the child should be returned to the country of habitual residence so that any future decisions can be made there.

There are some defences to an application for return. If the parent who has wrongfully removed the child can establish any of the following, then the foreign court may decline to order the return of the child:

1. That the child has now settled in the foreign country;
2. That the non-resident parent agreed to the removal or subsequently acquiesced in the decision;
3. That there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The law in practice

In a recent decision by Lady Carmichael in the Petition of SMA, an order for return of the child to their habitual residence was refused. It was accepted by the court that the removal was wrongful so why did she refuse to order the return of the child to France, where the child had been habitually resident for the majority of their life?

The argument advanced by the child’s mother in this action was that were the child to be returned to France, she would be exposed to a grave risk. It should be noted that the court would need to be satisfied that there is a real and serious risk to meet the “grave” threshold; a general fear or mild potential for harm would not be sufficient.  
In the case in question, there were numerous concerns around the father’s conduct which gave rise to a grave risk that a return to France would “expose the child to risk of physical injury or place him in an intolerable situation”.

This is not the first refusal in recent years in relation to a Hague Convention case and it is clear that the court is very much taking a child-centred approach, even where the legislation may not favour such an outcome at first glance.

What should you do if you find yourself in this situation?

The best advice would be to consult a family law solicitor immediately. Cases like this need to be dealt with quickly and with the right expertise as it is a complex area of law. Similarly, if you wish to seek to relocate with a child and that is opposed by the other parent then you should also consult a solicitor at the earliest opportunity; they can advise you on how to obtain a court order allowing you to relocate, without being embroiled in an action under the Hague Convention.

Nicola Watson is a partner at Aberdein Considine