The 6 defenses
When you are accused of child abduction and the other parents asks the court for a return order, these are the 6 main defenses.
They are based on the grounds of refusal as mentioned in articles 12, 13 and 20 of the Hague Convention on Child Abduction. A return order may be denied because of the presence of one of these grounds for refusal.
Every country has it’s own case law on these defenses.
Please note that there are also other defenses:
- the Convention cannot be evoked (not a member to the Convention)
- the child is 16 or older
- the requesting parent does not have (joint) custody
- the habitual residence has already changed to the new state.
1 The requesting parent was not
exercising custody rights
Article 13 provides that the return of an abductee may be refused if it is shown that the parent requesting the return was not actually exercising custody rights at the time of the abduction.
This refers to the actual care and education of the child, according to the explanatory report Pérez-Vera (p. 461). However, this does not require that that parent assumed the daily care and upbringing of the child at that time.
2 The requesting parent consented to
or acquiesced the move
The Convention is not te be used as a vehicle for possible bargaining between the parents.
If the parent who moved with the child acted in good faith, assuming the other parent agreed, the other parent cannot suddenly later file a return petition anyway, just to enforce a better visitation arrangement.
If a parent first agreed to or acquiesced in the move, that parent cannot later file a return petition if he or she feels she cannot have sufficient contact with the child. If there is consent or acquiescence, the court can deny the request for a return order. The parent can however apply to the court in the child’s new habitual residence to request a better visitation arrangement.
3 The child is of sufficient age and maturity
and objects to being returned
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 convention does not mention a minimum age in this regard.
4 The child is well settled
and procedure started only after one year
If more than one year elapses between the time of child abduction and the day the return application is filed, the court shall order the child’s return to the country of his habitual residence, unless the abducting parent can prove that the child has by now become rooted in his new environment (Article 12).
If less than a year has passed, the question whether a child has become rooted is irrelevant. Judges should strictly apply this time limit.
The period starts on the date a child was taken away from his/her habitual residence. Or the date a parent refuses to return the child to the habitual residence. For example, if there was permission to stay abroad for 6 months, this one-year-period starts after those 6 months.
The period stops on the day the return application is filed with the court. Requests filed with the other parent themselves or with the Central Authority are not relevant.
In order to determine whether a child is now rooted in the new environment, the physical, social and family environment of the child (family, friends, school, sports, church, grandparents etc.) must be considered.
5 Grave risk of physical of psychological harm if the child is returned
The return of an abducted child may be refused where there is a grave risk that the child’s return to the country of the childs habitual residence will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The idea behind the child abduction day is that it is not in the child’s best interest to be taken away from the familiar environment just like that. The convention allows for an early decision that the child should return to the familiar environment. This ground for refusal is based on the idea that the child’s interest in not being exposed to physical or psychological harm or otherwise being placed in an intolerable situation is even more important.
6 Fundamental principles relating to the protection of human rights and fundamental freedoms do not permit return of the child
The return of the child under the provisions of Article 12 may be refused if this would not be permitted
by the fundamental principles of the requested State relating to the protection of human rights and
fundamental freedoms.
This ground for refusal is rarely invoked and, to our knowledge, never with results.
