International Child Abduction | in Hague Convention cases you need a specialist solicitor

9th September 2020 By Arman Khosravi

Santosh Kumar has over 25 years’ experience handling international child abduction cases. Here Ms Kumar explains why having a specialist solicitor is vital to getting a positive outcome with child abductions, particularly in Hague Convention cases.

Background to the case

I recently took over a child abduction case from a firm who had little understanding of Hague Convention cases. The client had come to me because she understood the case was not going well. What she could not have known is that her previous firm had not set out any defence at all.

That hadn’t been intentional. The firm had put forward evidence which might have been persuasive under the Children Act. The firm hadn’t understood that this wouldn’t be enough for a Hague case. In these cases, a decision is made based on technical requirements rather than on the welfare of the child.

What is a Hague Convention child abduction case?

The Hague Convention is an international treaty that provides a fast process for returning a child that has been abducted by a parent from one member country to another. When left behind parents seek the return of a child under the Hague Convention, there are just a few reasons, called defences, why a return may be not be granted:

  • If the left behind parent was not actually exercising the custody rights at the time of removal or retention.
  • If the left behind parent consented or acquiesced to the child being removed/retained.
  • If the child, of an age and degree of maturity at which it is appropriate to take account of its views, objects to returning to the country of normal residence.
  • If the return would place the child  at grave risk of  physical or psychological harm or otherwise place them in an intolerable situation.

Under the Children Act, the welfare of the child is the court’s  paramount consideration when making decisions about a child but with Hague Convention cases it is a summary and technical jurisdiction. If the left behind parent can show that the child’s habitual residence is where they were abducted from and that they have rights of custody, and if the removal or retention was in breach of those rights of custody and the application is make within 12 months, then they have a Hague case.

Why specialist legal advice is critical

Hague Convention proceedings are technical and proceed at speed.  It’s vital that a client has a specialist solicitor who understands and has experience of Hague cases because it can make or break a case. This wasn’t the first time I have taken over a case to discover the client had initially been given no advice about available defences, and I’m sure it won’t be the last.

In the past I have managed to turn cases around, with parents able to achieve the outcome they want. The ideal scenario is to seek out the right solicitor in the first instance and to do so as quickly as possible.

Unlike other matters, Hague Convention child abduction cases should be completed within  six weeks from application to final hearing. This is very quick. Parents sometimes find that an order to return has been made before they fully understand what is happening. With such a short timescale, working with the right solicitor to put together the case is critical.

The Ministry of Justice has a panel of solicitors specialising in international child abduction Hague Convention cases. Oliver Fisher has been on that panel for many years. If you are applying for or responding to an application for a return under the Hague Convention, I would strongly advise you to take advice early on, and to seek out a solicitor on this panel if possible.

To get advice on an international child abduction matter, click here.

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