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Is it time for the 1980 Hague Convention to be revised?

Date:7 NOV 2018

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Hague Convention”) is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH).  There are currently 99 Contracting Parties to the 1980 Hague Convention and it is often lauded as one of, if not the most, successful international family law initiatives. 

The 1980 Hague Convention was designed to protect children from the harmful effects of wrongful removal or retention and establish procedures to ensure the prompt return of abducted children to the State of their habitual residence, as well as to secure protection for rights of access. 

The removal or retention of a child across an international border is considered “wrongful” if the removal or retention took place without the consent of the left behind parent and it has interfered with the exercise of that parent’s rights regarding the child.  An additional benefit of the 1980 Hague Convention is that whilst considering the left behind parent’s request for their child’s summary return, the courts in the country where the child has been taken or retained are precluded from making welfare decisions concerning the child, save for urgent interim arrangements designed to protect the child in the very short term.  The idea is that the decision whether the child should be summarily returned takes priority and must be determined first and that this should help deter parents from abducting their children as a form of “forum shopping” i.e. to secure a court they perceive as more likely to make welfare orders more favourable to them.

The 1980 Hague Convention has been extremely successful.  It has resulted in the summary return of thousands of abducted children worldwide and deterred the abduction of countless others.  Notwithstanding its enormous benefits the 1980 Hague Convention has some inherent deficiencies.  So, as it approaches its 40th birthday, is it a good time to consider whether the Convention should be revised?

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Although the purpose of the 1980 Hague Convention is to ensure the summary return of children it does not provide procedures to implement return orders and many contracting states sadly fail to ensure the enforcement of their own orders for the summary return of children. One has to wonder what the purpose is of an order for a child’s return if the country has no mechanism to enforce it? In addition is it fair that some contracting states faithfully ensure the enforcement of their return orders whilst at the same time many contracting states make no attempt to ensure the enforcement of return orders?

This links to another inherent deficiency of the convention which is that there is no procedure in place to ensure compliance by contracting states.  For example, there is no ultimate appeal court to ensure the universal application of the 1980 Hague convention and irradiate inconsistencies which cause uncertainties for families.  

Further, there is no uniform mechanism for the enforcement of undertakings (solemn promises to the court) and other arrangements which are offered by left behind parents to provide a “soft landing” for the returning child.  The courts of many contracting states do not require any undertakings or other practical arrangements designed to enable the “abducting “parent to accompany the child and are perfectly happy for children to be collected by left behind parents and returned in their care.  As a consequence, the very application of the 1980 Hague Convention can result in children experiencing trauma. 

Children can experience the loss of a parent who is either unable to accompany them because of practical problems or not afforded the opportunity to accompany their children. Parents who have fled domestic abuse are often expected to return their children without any immediate mechanism to ensure protection from harm and children can be exposed to wholly inadequate (though not necessarily harmful) living arrangements on return if insufficient thought is given as to where they will live and how the accompanying parent will actually provide for them financially etc. 

As a consequence of these problems, it is now routine in England and Wales for left behind parents to be asked to provide a package of protective measures and undertakings designed to ameliorate perceived concerns about a child’s welfare immediately on return and pending further court intervention.   As undertakings are not used and/or understood in all contracting states there is often no mechanism for the enforcement of the undertakings if they are breached following the child’s return.

So, as we approach its 40th birthday is it time to revisit and revise the convention? 

Notwithstanding its enormous success, is there room for improvement? In addition, even if the international community were willing to revise the 1980 Hague Convention will it be possible to ever secure a consensus for any revisions given the sheer number of contracting states? Ultimately, does the 1980 Hague Convention’s success actually preclude its improvement?

Marianna Michaelides and Helen Blackborn are solicitors at The International Family Law Group LLP. marianna.michaelides@iflg.uk.com / helen.blackburn@iflg.uk.com  

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