Child abduction—defences (1980 Hague Convention)
Child abduction—defences (1980 Hague Convention)

The following Family guidance note provides comprehensive and up to date legal information covering:

  • Child abduction—defences (1980 Hague Convention)
  • General approach
  • Child settled in new jurisdiction—art 12
  • Consent—art 13(a)
  • Acquiescence—art 13(a)
  • Left-behind parent not exercising their rights of custody—art 13(a)
  • Grave risk of physical or psychological harm—art 13(b)
  • Child's objection to a return—art 13

This Practice Note is impacted by the exit of the UK from the EU on 31 January 2020. This has implications for practitioners, inter alia, when considering which courts have jurisdiction to determine a dispute. For guidance, see Practice Note: Brexit—children proceedings. This Practice Note sets out the current position on defences to an application under the Hague Convention of 25 October 1980 on Civil International Aspects of Child Abduction (the 1980 Hague Convention).

This Practice Note sets out the limited defences that may be raised in response to an application under the 1980 Hague Convention, including consent or acquiescence, grave risk of physical or psychological harm and child’s objection to a return. It also considers the courts general approach as to the exercise of discretion. For practical guidance on the issue of proceedings under the 1980 Hague Convention, see Practice Note: Child abduction—introduction and issuing proceedings (Hague Convention). In relation to procedure generally, see Practice Note: Child abduction—procedure and evidence (Hague Convention).

In child abduction proceedings, the respondent may rely on the limited defences that apply to the 1980 Hague Convention, ie:

  1. child settled in new jurisdiction—art 12

  2. consent—art 13(a)

  3. acquiescence—art 13(a)

  4. left-behind parent not exercising their rights of custody—art 13(a)

  5. grave risk of physical or psychological harm—art 13(b)

  6. child's objection to a return—art 13

General approach

In Re M (children)