The 1980 Hague Convention on Civil Aspects of International Child Abduction came into force on 1 December 1983 with Canada, France and Portugal as the first three Contracting States. 40 years later the UK is one of 101 signatories making this an international instrument of the utmost importance in securing the return of children abducted across international borders.
The 40th anniversary of the Convention on 25th October 2020 occurred in the midst of a global pandemic which severely restricts global travel. The impact of this on the efficacy of an instrument designed to facilitate the swift return of abducted children across international boundaries to the countries of their habitual residence may be obvious.
In light of these challenges and to celebrate this anniversary, we consider whether the Convention has adapted to this new landscape.
Habitual Residence
For the Convention to be engaged the left behind parent has to overcome one initial but very significant hurdle. They have to establish that the child who has been abducted or unlawfully retained was habitually resident in the left-behind state when the wrongful removal or retention took place. In 2015 the Supreme Court put it beyond any doubt that habitual residence is a matter of fact and it is the stability of residence, rather than its degree of permanence that is important (AR v RN Scotland [2015] UKSC 35). There is then no prescribed time frame which requires to elapse before a child might be integrated in a new community and so a new habitual residence can be acquired in a short space of time if supported by the facts.
When Covid-19 took hold, many borders closed which left families separated, some through choice but others not. Travel restrictions and court closures have obstructed swift returns and consequently children have had additional time to put down roots and to become integrated in new communities. In certain cases, the outcome is the acquisition of a new habitual residence.
The law is quite clear that neither joint parental intention nor consent for the child to live permanently in the country to which he or she has been taken is required for a child's habitual residence to change. This poses potential problems for families who are separated as a consequence of Coivd-19. If a child becomes settled and integrated in a new state during what was supposed to be a temporary relocation with one parent, and the parental relationship breaks down, the other parent may find that the Convention's remedies cannot be engaged.
Whilst the courts have not at the time of writing had to address this matter in any reported cases it is not improbable that the courts will require to consider this issue as global restrictions continue to evolve. However, one area which the courts have required to address is the Article 13(b) defence – grave risk of harm.
Grave Risk of Harm
Under Article 13(b) the court has discretion in ordering the return of a child if it is established that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation".
The threshold is high and the risk of harm must be grave and not just a potential risk. It is one of the few narrow defences available under the Convention which has at its core a presumption that the child will be returned.
The Court of Session was faced with this argument in the unreported but well publicised "Leah Collins" case in which it was decided that notwithstanding the potential risk to the child of catching Covid-19 this did not meet the high threshold of the Article 13(b) defence.
It is clear that the Convention has been stretched in directions which could not have been envisaged 40 years ago and it will be interesting to consider how the courts will apply its regime if the pandemic continues to restrict international movement.
