The Hague Convention on the civil Aspects of International Child Abduction (1980) is the main international agreement which regulates international child abduction. The convention was designed to protect children internationally from the harmful effects of their wrongful removal or retention. The purpose was to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of international child access.

The focus of Hague convention is to ensure that the children’s interests are of paramount importance when dealing with issues of custody when parents live in different countries.

Article 1 of the Hague Convention confirms the objectives of the Convention which are as follows:

1. To secure return of children who have been wrongfully retained or removed in any contracting state
2. To ensure the rights of custody and access are respected in other contracting states.

With the benefit of the Hague Convention, a parent can apply to the courts for the return of the child providing the child has been wrongfully removed or retained in a county which is a part of the convention. Parents can also rely on Article 21 Hague Convention to establish international child access with their child who maybe living in a different country to them.

The Hague convention is made up of countries who formed a part of international treaties which agreed to follow the rules listed in the convention. Currently there are 91 members to the Hague Convention. These include the United Kingdom, United States of America, most of Europe including Spain, France, Italy, and Germany as well as countries from the American continent, Asian countries and Australia and New Zealand. 

Article 3 of the Hague convention describes the situation in where the removal or retention of a child is wrongful. This is where the removal or retention is:

1. In breach of the custody rights of a person either jointly or alone in the habitually resident state.
2. The custody rights which have been breached would have been exercised if it wasn’t for removal or retention of the child.

The rights of custody apply to a child who was habitually resident in a member state immediately before the breach took place.

The convention concerns the rights of custody and the rights of access. The rights of custody under Article 5 concern the rights relating to the care of the child and the child’s place of residence. According to the same article the rights of international child access relate to the right to take a child to a place other than the child’s habitual residence place for a limited time.

One parent may have taken the child out of the UK and has custody of the child, or in fact one parent with custody of the child may be in the UK whilst the other parent is based abroad. This could be due to work or relocation post separation to begin a new life. This is usually the case where there is custody when parents live in different countries.

There are a lot of family dynamics where one parent is living away in a different country to the child, in most cases international child access works well. This is the case especially where, for example, a child is living in the UK and one parent resides in Europe or vice versa. Given the distance of the flight which may be an average of 2 hours and access to low-cost budget flights which if booked in advance are relatively cheap.

However international child access may not always be straight forward and plain sailing. Issues may arise in maintaining the relationship through international child access, especially after a case where one parent has wrongfully retained a child following an extended holiday or relocated abroad without permission.

In such cases where you don’t oppose the child remaining in another country but want to ensure you maintain regular and free contact with your child you will need to make an application to the country where the child is habitually resident. 

Article 21 Hague convention relates to the rights of access and deals with the protection of the rights outlined in Article 5. This covers situations where an application is made to consider arrangements to exercise the rights of access. This is also known as international child access. The access relates to parents who do not have custody when parents live in different countries.

Under the regulations of this article a parent has the right to apply for access to a child where the child is living in another state. The application will need to be presented to the Central Authority in the country to which the matter applies. The Central Authorities are bound to promote the enjoyment of access rights and remove any obstacle which relate to the international child access.

If a child has been wrongfully removed or retained in a country outside of the UK and the child’s habitual state of Residence is the UK then the English Central Authority will need to be served with the application. The matter will then be allocated to a specialist Solicitor in England who can process the application and progress with the works for International access.

The Central Authority in the United Kingdom is the International Child Abduction and Contact Unit. The International Child Abduction Contact Unit acts as the Central Authority for England and Wales for the operation of the Hague Convention 1980, Brussels IIa (Council Regulation) the 1980 European Conventions on recognition and Enforcement of Decisions concerning Child Custody of Children and on Restoration of Custody of Children) and the operation of the Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children).

When you no longer have contact with your child due to them being kept abroad you will need to apply to contact your children or to enforce a court order from the family court abroad. To establish international child access through Article 21 Hague Convention you will need to contact the International Child Abduction and Contact Unit who will be able to forward an application on your behalf of the relevant country.

The ICACU will only forward an application under Article 21 Hague Convention to a county which is a signatory to Hague Convention 1980 or, Brussels IIa (Council Regulation), or The 1980 European Conventions on recognition and Enforcement of Decisions concerning Child Custody of Children and on Restoration of Custody of Children) or The Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children) and the application concerns a matter covered by one of the treaties between the UK and the other country.

It is therefore imperative that before any application under Article 21 Hague Convention is considered you check with her the country is that of a signatory country. The application form is available on the Government website and is the same application for either return of the child, for international access rights or to enforce an existing order.

Under Article 21 Hague convention when the application is sent to the International Child Abduction and Contact Unit the application is made as a contact order under the Children Act 1989. This will therefore be dealt in the UK under the law of England and Wales as opposed to the foreign country where the child is now residing. An application under Article 21 Hague convention effectively is a private law case being opened in the UK such as a case under the Children’s Act 1989.

The issues which are usually determined under the rights of international child access are contact, spending time during holidays with the child or taking the child to different place or for holiday for a limited time.

Applications for international child access under Article 21 will usually be made where the parents have been unable to reach an agreement for custody when parents live in different countries.

If your child has been wrongly removed to or retained in a county which is not a signatory to the Hague convention, then you are unable to make an application under Article 21 of the Hague convention. In such an event you will need to consider trying to reach a mutual amicable agreement with the other parent for the return of the child or get access to your child. You also have the option of commencing family law proceedings in the country to which your child has been wrongfully taken to or retained in. However, you will need to seek legal advice in relation to the country to which this applies. Alternatively, you have option of filing a criminal case for child abduction.

Grandparents and aunties and uncles often wonder whether they have international access rights to children who live abroad. Under the UK law people who do not hold parental responsibility have no automatic right to child access. Permission, therefore, needs to be sought from the court first to make an application for contact. If successful, the courts will then consider the matter.

However under the case of A & B v C (2018) EWHC 2048  was at the centre of attention whether considering whether Article 21 Hague convention applied to a non-parent. In this case the non-parent was the maternal grandmother and maternal grandmother. The case concerned a child who was aged 7 at the time. The child’s mother had died and at the time of the mothers death, the child was living with the mother and maternal family in Poland. Following the death of the mother the father collected the child and lived with him in Poland with the paternal grandparents. In 2017 the father returned to England leaving the child with the paternal grandparents before he bought the child to England to live with him the same year.

The father did not allow the maternal family any contact and stated the child is not ready to commence any relationship with the maternal family yet. The mother had had signed a declaration prior to her death stating that the maternal grandmother had authorisation to exercise custody rights over the child and made a will to such an effect. Whilst concluding the case the court directed that the Article 21 Hague Convention applied to both the maternal grandmother and the aunt. The reasoning behind this was that both the maternal grandmother and maternal aunty were important people, and it was important that the child maintains a personal relationship which fell under international child access rights.

Article 4 of the Hague Convention makes it clear that the convention applies to children prior to them attaining the age of 16 years. This means children who are aged 16 or above will not be considered to be subject of Hague Convention child custody.