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Report No. 218

II. The Hague Convention

2.1 The Hague Convention lays down that, when a court has jurisdiction over a child, the first question to determine is whether the Hague Convention applies to the case. Two conditions must be satisfied before the Convention applies:

(a) the child must be under 16 years of age; and

(b) the child must have been habitually resident in a Convention country immediately before any breach of custody or access rights.1

2.2 In Cooper and Casey,2 it was held that a child can have only one place of habitual residence which should be determined by focusing on the child's past experience and not on its or its parents' intentions.

2.3 The Hague Convention is expressly intended to enhance the international recognition of rights of custody and access arising in the place of habitual residence, and to ensure that any child wrongfully removed or retained from that place is promptly returned (Article 1). In most cases, therefore, the court's obligation to act in the best interests of the child is displaced as a consideration bearing on who is to have care or control of the child.

The Hague Convention creates central authorities throughout the Convention countries to trace an unlawfully removed child and secure its return. It is important to consider what principles and rules determine whether a child is or is not to be returned to a Convention country. The Convention mandates return of the child only when there has been a wrongful removal or retention of a child from a Convention country (Article 12). In securing rights of access, the following issues should be considered:

  • wrongful removal or retention;
  • excusable removal or retention; and
  • access.3

1. The Hague Convention on the Civil Aspects of International Child Abduction (1980), Article 4.

2. (1995) 18 Fam LR 433.

3. Dr. Justice AR. Lakshmanan Child Abduction - Parental Removal, (2008) 48 IJIL 427.

Need to accede to the Hague Convention on The Civil aspects of International Child Abduction 1980 Back

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