Report No. 218

Wrongful Removal or Retention

2.4 Article 3 of the Hague Convention provides that removal or retention of a child is wrongful where it is in breach of rights of custody and at the time of removal or retention those rights were actually exercised or would have been so exercised but for the removal or retention. Removal occurs when a child is taken out of the place of habitual residence, whereas retention occurs when a child who has, for a limited period, been outside the place of habitual residence is not, on the expiration of the period, returned.

It is not the removal or retention of the child from the parent which constitutes a breach of Article 3 but the removal or retention from the place of habitual residence that creates the wrong. It is important to identify the event constituting removal or retention because on an application made within one year of such removal or retention, the court must order the return of the child, whereas if this is done after one year, the court must also order the return of the child unless it is satisfied that the child has settled into its new environment.1

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