Report No. 218

Excusable Removal or Retention

2.5 There are also some grounds which enable the removal or retention of the child to be excused (vide Articles 12, 13 and 20) and these are:

= (i) Applicant not exercising custodial rights - The Court can refuse to order the return of the child if the applicant was not actually exercising rights of custody when the child was removed or first retained.

= (ii) Consent to or subsequent acquiescence - The order for the return of the child can be refused if the applicant had consented to or subsequently acquiesced in the removal or retention. This consent or acquiescence may be expressed or inferred from conduct in circumstances in which different conduct might be expected if there was no consent or acquiescence.

= (iii) Risk to the child - The Court may refuse a return if there is a grave risk that the return of the child to the country in which it habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

= (iv) Child's objection - The Court may refuse to order return if a child, who has obtained an age and degree of maturity at which it is appropriate to take account of the child's views, objects to the return. It should be an emphatic objection and not a mere preference to remain where it is.

= (v) Protection of rights and freedoms - The Court may refuse to order return if it would be contrary to the protection of human rights and fundamental freedoms.

= (vi) Expiry of one year - The application for return was made more than one year after a wrongful removal or retention and the child settled into its new environment.1

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