The 1980 Hague Convention: Challenges of the Exceptions

Abstract

This article examines the exceptions to the return mechanism under the 1980 Hague Convention on Child Abduction, which aims to prioritise the prompt return of children to their state of habitual residence. Recognising that there are various grounds for refusing to make a return order, the Convention provides specific circumstances in which a court may decline a return order. These exceptions are as follows: (1) child’s settlement in a new environment (Article 12(2)), (2) consent and subsequent acquiescence of the parent (Article 13(1)(a)), (3) grave risk of harm or intolerable situation (Article 13(1)(b)), and (4) the child’s objection (Article 13(2)) – are explored through case law and guidance from various sources. This article highlights the legal challenges and inconsistencies that may arise in establishing these exceptions.

Introduction

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (1980 Convention)[1] seeks to protect children from the harmful effects of cross-border abduction. Its objective is to restore the status quo ante by returning the child to their habitual residence[2], where further substantive custody issues should be resolved. That said, several exceptions can be raised by the abductor to prevent a return order of the child.

The exceptions are:

• Article 12(2): Settlement of the child in the new state of habitual residence/ environment.
• Article 13(1)(a): Consent or subsequent acquiescence by the left-behind parent to the removal or retention of the child
• Article 13(1)(b): Grave risk of harm that the child’s return would cause them physical, or psychological harm and/ or otherwise place them in an intolerable situation.
• Article 13(2): Objections from the child to a return order[3].

This article delves into the scope and application of these exceptions and the legal complexities they might present.

Background to the convention

Aims and underlying philosophy

 Article 1(a)[4] of the 1980 Hague Convention affirms its aim to protect children from cross-border abduction through the prompt return of children to their state of habitual residence.

For the left-behind parent to file a petition under the 1980 Hague Convention, this left-behind parent must have custody rights concerning the child.[5] This would then trigger a return order under Article 12(1)[6] where the child is to be returned within less than 12 months since the start of the proceeding. The court seised with this matter is not to investigate the best interest of the child nor the merit of the case as that role is given to the competent authority of the child’s state of habitual residence.

Key definitions

The requested state – the court seized with the matter to bring about a summary return order.

The requesting state – the child’s original state of habitual residence before the wrongful removal/ retention occurred.

Habitual residence – the place where the child typically resides and has several connections, such as social, family, and educational ties.

Summary return order – A legal directive ordering the prompt return of a child to their state of habitual residence under the 1980 Hague Convention

Acquiescence – the acceptance of an act, such as the left-behind parent’s acceptance of the removal of the child without an explicit objection.

The Exceptions

Article 12(2): Settlement of the child

Article 12(1) entails the trigger for summary return proceedings.[7] It states that the child is to be returned forthwith where a child has been wrongfully removed or retained and where less than twelve months have elapsed since the start of the proceeding.[8] However, under paragraph 2 of the same article, if it can be demonstrated that the child is settled in the new State of habitual residence and the one year period has elapsed since the start of the proceedings, the application for the return of the child may be dismissed.[9]

This is a strict application as the courts have to consider several factors which demonstrate that the child is well-settled in their new environment. For example, stability in home, school, and social life, the emotional and psychological adjustments formed during the settlement period, and whether a return order would disrupt their well-being and be contrary to their best interest. All of these factors are to be brought by the one raising the defence – that is, the abductor/taking parent. Adding to this, Soucie v Soucie[10] clearly highlighted that the abductor must prove that the settlement is so well-established that it would override the duty of the court. This is a difficult criterion to meet because it is not logical for a child to have gained settled status after living in a new environment for more than one year, thus foregoing the status that they had prior in the original state of habitual residence. As a result of this, the court must look for stability rather than mere presence in the new environment. This was shown in Cannon v Cannon[11], the courts must look to the child’s integration in the place, school, the people, and opportunities – the court emphasised genuine integration over mere presence.

Article 13(1)(a) : Consent and Acquiescence

Another defence to a return order is found in Article 13(1)(a), that is, consent or acquiescence. This means that the left-behind parent has given consent to the taking of the child or subsequently acquiesced to the move.[12] There are several key considerations that must be looked at when pondering this defence. Whether it should be a verbal or written consent, whether certain actions could constitute acquiescence to the removal or retention of the child, and finally, whether consent can be revoked before the abduction even takes place.

According to Re C (Abduction: Consent)[13], consent has to be firm, unequivocal, and positive, but it need not be in writing and can be inferred from conduct. On the whole, it must be clear to the court that there is sufficient evidence to prove consent from the left-behind’s parents words and/or actions.[14] Furthermore, LJ Ward in Re P-J (Children)(Abduction: Consent)[15] held that for the purposes of Art 13 regarding consent, there several principles to be applied for the determination of consent. Those are: consent must be clear and unequivocal( this is the most important ), it can be given for future removals, the future consent must be relevant at the time of removal and it must be ascertainable, the consent must be viewed in relation to family life, consent can be removed before the child is removed and the abductor bears the burden of proof that the left-behind parent has consented.[16]

To determine the subsequent acceptance of the removal/retention of the child, Re H and Others (Minors)(Abduction: Acquiescence)[17]determined that a subjective test must be held to determine if the acquiescence truly is unequivocal. That is, what the actual intentions of the left-behind parent are and, not what others may perceive of their intentions. Whilst the court is reluctant to accept acquiescence by passing remarks or comments made in anger[18], where the abducting parent has relied on the acceptance made by the left-behind parent, the court is likely to accept this.[19]

Article 13(1)(b): Grave risk of harm

Article 13(1)(b) provides an exception to a return order where there is a grave risk of harm that the child’s return would expose them to physical or psychological harm, or place them in an intolerable situation.[20] There are three different types of harm that may constitute grave risk – physical harm, psychological harm, and intolerable situation – and they maybe raised independently to oppose the prompt return of the child.[21]

According to the HCCH Guide to Good Practice on Article 13(1)(b)[22], in order for this exception to be valid, the risk must be real and of a level of seriousness to constitute the risk as grave.[23] The term ‘grave risk’ places a narrow interpretation on itself because it would require clear and compelling evidence brought by the abductor to demonstrate that the risk is very real and substantial.[24] Moreover, the Explanatory Report to the Convention[25] highlighted that the exception should be interpreted in a restrictive fashion, as the aim of the convention is for the prompt return of the child, a loose interpretation of the grave risk of harm would make the convention lose its effectiveness.[26] This was further proven in Re N (Minors)(Abduction) 1991[27], it added that a very high degree of intolerability must be established or there must be a ‘severe degree of psychological harm which the Convention has in mind’[28]. It is understood that the narrow interpretation allows for the court to facilitate the aims of the convention, nonetheless, it may limit the best interest of the child and weaken the rights of the abducting parent with valid reason by having them establish grounds of substantial harm upon the child.

A landmark case that shaped the standard for ‘grave risk’ is in Re E (Children)(Abduction: Custody Appeal)[29]. Here, it was held that the mother failed to sufficiently establish the exception under Article 13(1)(b) as the risk was not substantially real and it was something that could be mitigated by protective measures. With that being said, the court, in addressing the key question raised in Re S (A Child) (Abduction: Rights of Custody)[30], considered the consequences of a child returning with the primary carer who had abducted them—particularly when the carer failed to establish an exception preventing the return. The court held that the anxieties experienced by the abducting parent, who is also the primary carer, could create an intolerable situation for the child. While evidence is required to prove a grave risk of harm, if the primary carer is unable to fulfil their parental responsibilities due to a return order, this failure may justify the application of the third exception, placing the child in an intolerable situation.

Article 13(2): Child’s objections

An objection ‘should be a feeling beyond ordinary wishes, where the child displays a strong sense of disagreement to the return’[31] and ‘it must, at least, involve the expression of a negative view not to return.’[32] The court must refuse an order if the child rejects to being returned. Considering that this is to protect the child from the harmful effects of child abduction, hearing the child and taking into account their opinion is the best way to ensure the well-being of the child.

There have been several conflicts about this exception, one regards the age at which a child is capable of having attained the requisite maturity in order to object to a return. In various cases such as Re R (Abduction: Acquiescence)[33], B v K (Child Abduction)[34], and Re S ( A Minor) (Abduction: custody rights)[35], have all determined that a child aged between 6 – 9 is seen as having reached the requisite age and maturity to give an objection to a return order. In England and Wales, Baroness Hale established a common law principle that all children should be heard as long as the requisite levels of age and maturity are deemed to be satisfied.[36] The threshold for maturity is subjective, and as a result, it can lead to inconsistent rulings. For example, in Tahen v Duquette[37], a New Jersey court held that the objections raised by a 9-year-old child were incapable of doing so because they had not reached the requisite level of age. Similarly, in England v England[38], a Texan court held that due to a lack of evidence, a 13-year-old child was incapable of expressing reasonable objections.

By allowing children to have the opportunity to express their views, feelings and wishes in matters that affect them, the 1980 Hague Convention is promoting and incorporating Article 12 of the United Nations Convention on the Rights of the Child[39]. With that being said, competent authorities should be wary of the views of the child as they may be subjected to parental and emotional influences which may produce a negative outcome contrary to the child’s best interest.[40]

Nonetheless, the lack of alignment and clarification of when a child is capable of expressing objections are key issues of this exception. Accordingly, a uniform interpretation of the level of age and maturity of the child and perhaps a consideration that all children, but subject to parental influence, should be given the opportunity to be heard and the right to express their views.[41]

Discussion

The examination of the exceptions reveals a tension between the Convention’s primary aim of prompt return and the more fact-specific nature of the exceptions. The convention is designed for the swift return of the child to their state of habitual residence, but it acknowledges that there are various cases in which a return may not be in the best interest of the child; thus, the provisions for the exceptions.

The settlement exception proves to be child-centric, but the courts should be weary of the abductor who delay proceedings – as warned about in Cannon v Cannon[42]. It should be stressed that for settlement to be established, there must be genuine integration through social, cultural, and educational connections, not just a passage of time.

Consent and acquiescence have proven to be difficult to establish because a subjective test requires the court to assess intent retrospectively, especially with cases establishing acquiescence. This is because there is difficulty in assessing the parent’s tacit acceptance as only the left-behind parent knows truly what their intentions are.

The narrow interpretation of grave risk of harm under Article 13(1)(b) as seen in the Re E case[43]is a result of the court’s emphasis that potential protective measures are capable of mitigating a harm, so allowing the return of the child. Furthermore, the HCCH Guide to Good Practice reinforces that the risk must be ‘grave’, that is, it must be so real and substantial that it could cause physical or psychological harm or place the child in an intolerable situation should the child have to return.[44] This limits the Conventions flexibility in cases where there are truly harmful circumstances.

Finally, the child’s objections defence varies significantly in its application. There is inconsistency in how court assess maturity, thereby creating uncertainty. Nonetheless, for the convention to be aligned with Article 12 of the UNCRC, there is an underlying importance of listening to the child – which is what most courts should aim to do.

Conclusion

The 1980 Hague Convention allows for the objection of a return order via one of the many exceptions under its provisions. In order to establish these exceptions, it must be proven based on the child. For example, with Article 13(1)(b), the grave risk of harm must be to the child and not to the abducting parent. The narrow interpretation of provisions of grave risk of harm to the loose one of the settlement exceptions brings about inconsistencies in its application. With that being said, it is clear that when bearing in mind the exceptions, the foremost principle of prompt return is key, as shown through the various case laws mentioned above. Greater international consistency through judicial cooperation and reform is needed to ensure the exceptions serve their protective functions without undermining the Convention’s core objectives.

References

Primary Sources

Hague Convention on the Civil Aspects of International Child Abduction (adopted 25 October 1980, entered into force 1 December 1983) 1343 UNTS 89

United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, Article 12

Cases

B v K (Child Abduction) [1993] 1 FCR 382

C v W  2007  EWHC 1349 (Fam).

De L v Director-General, New South Wales Department of Community Services’ (1997) 11 Australian Journal of Family Law, 3

England v England 234 F.3d 268 (5^th Cir. 2000)

Re C (Abduction: Consent) [1996] 3 FCR 222

Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478

Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619

Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27

Re H and Others (Minors)(Abduction: Acquiescence) [1998] AC 72 [88]

Re K (Abduction: Consent) [1997] 2 FLR 212

Re M (Children) (Republic of Ireland) ( Child’s Objection: Joinder of Children as Parties to Appeals) [2015] EWCA Civ 26

Re P-J (Children)(Abduction: Consent) [2009] EWCA Civ 588

Re R (Abduction: Acquiescence) [1995] 1 FLR 716

Re R (Child Abduction: Acquiescence) [1995] 1 FLR [727].

Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10

Re S ( A minor) (Abduction: custody rights) [1993] Fam 242

Soucie v Soucie [1995] SC 134

Tahen v Duquette 613 A.2d 486, 490 (N.J. Super. Ct. App. Div. 1992)

Secondary Sources

Pérez-Vera E, ‘Explanatory Report on the 1980 Hague Child Abduction Convention’ (Hague Conference on Private International Law 1981) https://assets.hcch.net/upload/expl28.pdf accessed 7 May 2025

Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part VI – Article 13(1)(b) (HCCH 2020) https://assets.hcch.net/docs/225b44d3-5c6b-4a14-8f5b-57cb370c497f.pdf accessed 9 May 2025

Fenton-Glynn E, ‘Participation and Natural Justice: Children’s Rights and Interests in Hague Abduction Proceedings’ (2014) 9 Journal of Comparative Law 134

 Nygh P, ‘The High Court Considers the Hague Child Abduction Convention in De L v Director-General, New South Wales Department of Community Services’ (1997) 11 Australian Journal of Family Law 3

Fernando M and Mant J, ‘Hearing Children’s Objections in Hague Child Abduction Proceedings in England and Wales, Australia, and the USA’ (2023) 12 Laws 69 https://doi.org/10.3390/laws12040069 accessed 8 May 2025

[1] Hague Convention on the Civil Aspects of International Child Abduction (adopted 25 October 1980, entered into force 1 December 1983) 1343 UNTS 89.

[2] ibid, Article 1 & Preamble.

[3] ibid, (n 1)  Articles 12(2), 13(1)(a), 13(1)(b) & 13(2).

[4] ibid, (n 1) Article 1(a).

[5] ibid, (n 1 ) Article 4.

[6] Ibid, (n 1)Article 12(1).

[7] ibid.

[8] ibid.

[9] 1980 Hague Convention, (n 1 ) Article 12(2).

[10] [1995] SC 134.

[11] [2004] EWCA Civ 1330 [22][25].

[12] 1980 Hague Convention, (n 1) Article 13(1)(a).

[13] [1996] 3 FCR 222.

[14] See Re K (Abduction: Consent) 1997 2 FLR 212.

[15] [2009] EWCA Civ 588 .

[16] ibid [48].

[17] [1998] AC 72 [88].

[18] See C v W  2007  EWHC 1349 (Fam).

[19] See Re R (Child Abduction: Acquiescence) 1995 1 FLR [727].

[20] 1980 Hague Convention, (n 1) Article 13(1)(b).

[21] Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part VI – Article 13(1)(b) (HCCH 2020), < https://assets.hcch.net/docs/225b44d3-5c6b-4a14-8f5b-57cb370c497f.pdf> [31] accessed on 09 May 2025.

[22] ibid.

[23] ibid [34].

[24] See Re C (Abduction: Grave Risk of Physical or Psychological Harm) 1999 2 FLR 478.

[25]  E. Pérez-Vera, “Explanatory Report on the 1980 Hague Child Abduction Convention”(Hague Conference on Private International law. 1981) < https://assets.hcch.net/upload/expl28.pdf> accessed on 07 May 2025.

[26] Ibid, [104][105], accessed on 07 May 2025.

[27] [1991] FLR 413 [419].

[28] See Re C (A Minor) (Abduction) 1989 FLR 403 [199].

[29] [2011] UKSC 27.

[30] [2012] UKSC 10.

[31] E Fenton- Glynn,  ‘Participation and Natural Justice: Children’s Rights and Interests in Hague Abduction Proceedings’ (2014) 9 Journal of Comparative Law, 134.

[32] P Nygh, ‘The High Court Considers the Hague Child Abduction Convention in De L v Director-General, New South Wales Department of Community Services’ (1997) 11 Australian Journal of Family Law, 3.

[33] [1995] 1 FLR 716.

[34] [1993] 1 FCR 382.

[35] [1993] Fam 242.

[36] See Re D (A Child) (Abduction: Rights of Custody) 2007 1 AC 619.

[37] 613 A.2d 486, 490 (N.J. Super. Ct. App. Div. 1992).

[38] 234 F.3d 268 (5^th Cir. 2000).

[39] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, Article 12.

[40] See Re M (Children) (Republic of Ireland) ( Child’s Objection: Joinder of Children as Parties to Appeals) 2015 EWCA Civ 26.

[41] Fernando M and Mant J, “Hearing Children’s Objections in Hague Child Abduction Proceedings in England and Wales, Australia, and the USA” (2023) 12 Laws 69 <https://doi.org/10.3390/laws12040069> 54 accessed on 08 May 2025.

[42] ibid (n 11).

[43] ibid (n 28).

[44] ibid (n 21)Pg 26[34].