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Two important international treaties govern child abduction:

Brussels II Revised

Brussels II Revised (BIIR) or Brussels II bis (Council Regulation (EC) No 2201/2003) is an international agreement made between countries of the European Union.

BIIR brings together in a single regulation all provisions on parental responsibility and divorce. It excludes issues relating to paternity, changing a child’s name and adoption.

Under BIIR court orders which were made in one member country can be registered in another automatically through a purely administrative process and do not need to be retried (note that this does not apply to registering an order made in England or Wales in the Scottish courts).

Our guidance is that if you have an order from another Member State, your first action should be to register it using the procedure in Part 31 FPR 2010 and the certificate referred to in Article 39 of BIIR and detailed at Annex II; the court from which you obtained the order you wish to register and enforce will provide this to you.

The country in which the child was habitually resident and from which the child was abducted continues to have jurisdiction and can issue an order for immediate mandatory return; the judgement must be made within 6 weeks

Brussels II takes precedence over the Hague Convention.

BIIR applies in the following member countries of the EU:

Austria

Greece

Poland

Belgium

Hungary

Portugal

Bulgaria

Republic of Ireland

Romania

Cyprus (Southern)

Italy

Slovakia

Czech Republic

Latvia

Slovenia

Estonia

Lithuania

Spain

Finland

Luxembourg

Sweden

France

Malta

United Kingdom

Germany

Netherlands

BIIR is not always applied correctly by the lower courts and it is wise to have a case transferred up; consider this example:

A French court had made a decision in the father’s favour concerning the residence of his three children. When the children went on a contact visit to their mother in England she refused to return them.

The father brought an application for immediate return under the Hague Convention; the mother defended. There were 3 directions hearings before three different High Court judges and a full CAFCASS report was prepared.

When the case came before Mr Justice Mostyn he refused to adjudicate upon it and called it a waste of time and money (JRG v EB [2012] EWHC 1863 (Fam)). The father should simply have applied to have the French order registered and enforced under BIIR which takes precedence over the Hague Convention.

This is a purely administrative process and the Court is required to handle it expeditiously. The Court has no jurisdiction to retry a decision by a fellow Member State except in very exceptional circumstances and the mother’s defences were irrelevant.

Mostyn also considered the requirement under the overriding objective to save time and expense and that under the Senior Courts Act 1981 to avoid duplication of proceedings.

The Hague Convention

The Hague Convention is an international agreement which applies in a wider number of countries than BIIR. Where there is overlap BIIR takes precedence.

There are in fact several Hague Conventions; the relevant ones are the 1980 Convention on the Civil Aspects of International Child Abduction, which was originally brought into UK law by the Child Abduction and Custody Act 1985, the 1993 Convention on Inter-Country Adoption and the 1996 Convention which provides for the co-ordination of legal systems and for international judicial and administrative cooperation and which came into force in November 2012.

The UK has agreements under the Hague Convention in the following jurisdictions, but note that Brussels II Revised takes precedence in those EU countries which are in italics:

Argentina

Finland

New Zealand

Australia

France

Norway

Austria

Georgia

Panama

Bahamas

Germany

Peru

Belarus

Greece

Poland

Belgium

Honduras

Portugal

Belize

Hong Kong

Romania

Bosnia/Herzegovina

Hungary

St Kitts and Nevis

Brazil

Iceland

Serbia

Bulgaria

Republic of Ireland

Slovakia

Burkina Faso

Israel

Slovenia

Canada

Italy

South Africa

Chile

Latvia

Spain

Colombia

Lithuania

Sweden

Costa Rica

Luxembourg

Switzerland

Croatia

Macau

Turkey

Cyprus (southern)

Macedonia

Turkmenistan

Czech Republic

Malta

USA

Denmark

Mauritius

Uruguay

Ecuador

Mexico

Uzbekistan

El Salvador

Monaco

Venezuela

Estonia

Montenegro

Zimbabwe

Fiji

Netherlands

The Hague Convention (Article 12) demands that:

Where a child has been wrongfully removed or retained... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful remove or retention, the authority concerned shall order the return of child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year ... shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

All applications to return under the Hague Convention must be made to the High Court.

TLMP v AWP [2012] CSOH 121 is a case from the Scots jurisdiction but still raises some important Hague principles. The petitioner sought return of a child under Article 12 of the Hague Convention. The respondent father argued that the mother had agreed to the child’s removal.

The Court found the child had been wrongfully retained and ordered return but suggested the Californian court should inquire as soon as possible into whether the child’s long term interests were best served by residence with his mother or father. The Court held:

1. Prompt return under the Convention is in the child’s best interests and thus Article 8 of the European Convention on Human Rights is not violated;

2. Where there is dispute over consent the burden of proof is on the abducting parent on the balance of probability; where there is no proof either way the Court cannot conclude that arrangements were agreed;

3. The child could not be shown to be settled in his new environment because it was not known how he functioned emotionally without his mother;

4. The respondent failed to establish that the child would be at risk or would otherwise be placed in an intolerable situation were he to be returned.

What Hague means:

Proceedings brought within a year

When proceedings commence within a year of wrongful removal the child must be returned.

Where a period of less than a year has elapsed the child’s welfare remains paramount, and the Hague Convention principle cannot be applied automatically or mechanically. Article 13 of the Convention states that return is not required where it would ‘expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’; see also Neulinger and Shuruk v Switzerland (Application no. 41615/07) ECHR in which it was determined that ordering the return of a child to Israel would breach the Article 8 rights of mother and child.

Proceedings brought after a year

When a year has elapsed the child must be returned unless it can be demonstrated that he is ‘settled in his new environment’.

Where a year has elapsed abduction cases depend on how the courts interpret the expression ‘settled in his new environment’.

The defendant must be able to show that the present situation ‘imports stability when looking into the future’, and has developed an attachment to the new country – whether through marriage, family, employment, etc. The judgement in Cannon v Cannon gives a review of the relevant authorities at paragraphs 22 to 25. The term ‘new environment’ encompasses place, home, school, people, friends, activities and opportunities but not, per se, the relationship with the defendant parent: see Re N (Minors) (Abduction) [1991] 1FLR 413 per Bracewell J at 417H-41HB.

Where a period greater than a year has elapsed before an application for return is made the Court must consider the reason for this delay, particularly where the defendant parent has concealed the whereabouts of the child from the other parent; see Cannon v Cannon and Re H (Abduction: Child of Sixteen) [2000] 2FLR 51 in which it was decisive that the father commenced proceedings within 12 months of discovering the child’s whereabouts. In such cases the onus on the defendant to demonstrate ‘settlement’ is greatly increased. The Court must look critically at claimed settlement which has been built on concealment and deceit, particularly where the defendant is a fugitive from justice in their home country.

It appears to be the case, reviewing the relevant judgements, that courts will place greater emphasis on Thorpe’s first constituent, physical integration, than on his second, emotional stability. Consider Mrs Justice Bracewell’s throwaway comment in Re N (Minors) (Abduction) [1991] 1 FLR 413, 418C that the abductor’s status ‘had to be as permanent as anything in life could be said to be permanent’. Many of these children are clearly far from emotionally stable, yet the courts do not seem to associate that with the fact of their abduction, regarding it as normal in teenagers, for example, and entirely consistent with the concept of ‘settlement’ under the Convention. Thus Thorpe can say with no sense of self-contradiction,

While it is plain that A has had a history of trouble from persistent bullying by and a number of emotional disturbances, neither factor goes to the question whether or not she is physically settled into the community in which she has lived for 5 years. I find that she is so settled.

Thorpe says that the Court must balance the degree of wrongdoing (or ‘turpitude’) committed by the defendant against the extent to which the 12 month limit has been exceeded; i.e. if the abductor conceals their whereabouts for long enough, that will outweigh any degree of turpitude. The Court must also consider the difficulty of re-introducing the other parent into his child’s life at this late point (such ‘difficulty’ is usually vastly overstated).

The Court of Appeal may often remit these cases to the Family Division (and a report by CAFCASS) to determine where the balance lies. The parent trying to re-establish contact with his child must recognise that judges like Thorpe deem breach of court-ordered custody of greater ‘turpitude’ than frustrating a child’s relationship with one of his parents.

Thorpe emphasises that although the Hague Convention provides ‘a swift and summary procedure’ for the return of a child, preventing an abducting parent from gaining advantage through their wrongdoing, an order for return must not be ‘an automatic response’. Although the courts in a child’s country of origin are best placed to decide matters of custody, once sufficient time has been spent in the new country they are no better placed than the courts there because the evidence on which such a case must be decided has now shifted to the new country.

Hague precedents

Let us look at two cases in which the Court has exercised its discretion to order the return of a child. In Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 Balcombe J ruled that in normal circumstances it is generally in a child’s best interests promptly to be returned and that only in exceptional cases should a court exercise its discretion not to return. The court should consider a child’s views as likely to be influenced by the abductor (that is, the child will have been alienated, or even be demonstrating Stockholm Syndrome-type behaviour) – and by the knowledge that return could result in the abductor’s arrest and imprisonment – and little weight should be given to them.

This principle is only overturned by the demonstration that the child’s views are clearly his own, and that determination will depend heavily on the report by CAFCASS.

Thorpe approved Balcombe’s observation in Zaffino v Zaffino (Abduction: Children’s Views [2005] EWCA Civ 1012, [2006] 1 FLR 410. This case involved a French couple: in 2002 a French court ordered the mother residence and the father contact. The father appealed the order, but relocated to the UK prior to the hearing, at which the appeal was dismissed. Contact continued intermittently. In 2005 the father and son, both now in the UK, jointly applied for a variation of the order; the mother countered with an application for sole residence which was granted, she also applied under the Convention for the son’s return.

In February 2006 the High Court found that the son objected to the return; he was of sufficient age and maturity for his views to be taken into account, the judge did not order return, exercising his discretion under Article 13, Paragraph 2 of the Convention,

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

The mother appealed. Lords Justice Thorpe and Wall allowed the appeal and ordered return. The trial judge had erred in exercising his discretion and had given insufficient weight to the order of the French court; the strong presumption was that children should be returned. Discretion to refuse return could only be used in exceptional cases (see Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242), and although the child’s opinion carried weight, the abduction was patent, it was clearly a French case, and French proceedings were on-going. The trial judge had satisfied the requirement that he be ‘plainly wrong’.