Tanya Galbraith is a solicitor at Charles Russell, London.
There has been considerable press coverage about international child abduction cases. Most of the comment has been about it being unfair that the parents have to return to the country they have fled from to fight a long and expensive custody battle.
But it is the abducting parent that is in the wrong. Why should they be rewarded by being allowed to choose the jurisdiction for deciding their case? It is only right the court where the child was habitually resident before the abduction should decide on its future.
I have dealt with more than 30 international child abduction cases over the last five years. These cases range from children being taken from the US to England, to abductions to Turkey. My first job is often to try to locate the child or children (with the help of private investigators) The abandoned parent are under an enormous strain, having no idea where their child is or whether it is well and safe.
In England and Wales the Hague Convention operates by the central authority of the country the child was abducted from instructing the Lord Chancellor's Department. The LCD then instructs one of its solicitors, who starts proceedings in the High Court for the child's return.
The removal (or retention) of the child must be in breach of the abandoned parent's rights of custody and the child must have been habitually resident in the foreign jurisdiction immediately before the wrongful removal.
If proceedings are commenced within one year of the abduction, the court will return the child unless one of the defences can be established that: the abandoned parent was not exercising custody rights at the time of removal or had consented to or subsequently acquiesced in the removal; there is a grave risk that returning the child would expose it to physical or psychological harm or place it in an intolerable situation; the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
If no defence is substantiated this confirms the abduction was wrongful and the child will be returned.
I suspect if an English child were abducted the press would be spouting the virtues of the Hague Convention demanding its future be determined by an English court.
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