No return order due to ratified parental agreement
Court of The Hague October 14, 2024
Case number: C/09/667007 / FA RK 24-3775
Signed parental agreement
After their separation, the parents of a child signed an agreement under Cape Verdean law determining parental authority. At the time this agreement was drafted, the mother was residing in Portugal with the child. Following the conclusion of the agreement, the mother relocated with the child to Cape Verde temporarily. Subsequently, she moved to the Netherlands with the child without obtaining the father’s consent or seeking court approval.
Father’s request
The father filed a claim asserting that the child was unlawfully removed in violation of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. He contends that the removal breached his custody rights under Cape Verdean law and has requested the Hague District Court to order the relocation of the child to Cape Verde.
The father further claims that the ratified parental agreement between the parties did not include provisions permitting relocation of the child without prior consent from both parents and denies having agreed to the child’s move to the Netherlands.
Mother’s response
The mother disputes the allegations of unlawful removal, asserting that the ratified parental agreement under Cape Verdean law granted her exclusive parental authority, thereby eliminating the need for paternal consent or judicial authorization. She sustains the following:
– The parental agreement explicitly confers full parental authority, including the right to determine the child’s residence, as supported by Cape Verdean legal provisions requiring mutual parental agreement for significant decisions unless otherwise contractually modified.
– The father’s consent to the agreement at the time she and the child lived in Portugal demonstrates implicit acceptance of international relocation, so the mother did not need additional parental consent or a new court decision to move to the Netherlands.
Court’s decision
The court ruled in favor of the mother, determining that she was not required to obtain the father’s consent for relocating the child to the Netherlands. This conclusion was based on an analysis of the parties’ intentions as reflected in their Cape Verdean parental agreement, which the court interpreted as granting the mother autonomous decision-making authority over the child’s residence.
In denying the father’s request for the child’s return to Cape Verde, the court found no violation of the Hague Convention on the Civil Aspects of International Child Abduction. It emphasized that the agreement’s provisions under Cape Verdean law, ratified while the child was already residing internationally in Portugal, demonstrated a mutual understanding permitting transnational mobility.
The court concluded that the relocation did not constitute wrongful removal under Article 3 of the Hague Convention, as the mother’s custodial rights were contractually established and aligned with the child’s habitual residence framework.
The Hague District Court, first instance C/09/667007 / FA RK 24-3775
This blog is written by Alexandra Hernández, alumni of the master of Laws (LL.M.) in Advanced Studies in International Children’s Rights (Leiden University). She volunteered to write guest blogs about child relocation and child abduction.
Read more about International Child Abduction