As of 22 April 2014, the Legal Aid Agency has agreed to grant automatic non-means non-merit tested legal aid for mediation in cases involving the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’). All parents who make an application for the return of a child under the Hague Convention will now be granted legal aid to cover the costs of mediation with their former partner to try and resolve their dispute without going to court.
International Hague Convention Developments
On 24 January 2014, Japan became the 91st country to ratify the Hague Convention which came into force in Japan on 1 April 2014.
13.4 The Hague Convention on Abduction
13.4 (a) (viii) Breach of a return order
In MB v. GK  EWHC 1122 a father was held in contempt of court and sentenced to 18 months imprisonment for failing to comply with three High Court orders requiring him to return his five-year-old son to England from Singapore.
13.4 (c) The voice of the child in Hague Convention cases
In the following case the Court of Appeal clarified the Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010) in Hague Convention cases:
Separate representation of the child in Hague Convention proceedings
In Cambra v. Jones  EWHC 913 (Fam) Sir James Munby P granted party status to a 16-year-old girl. Although he acknowledged that making a child a party to proceedings could be very damaging to family relationships, he held that it was not in her best interests to be prevented from participating in proceedings which affected her very profoundly, and where she had ‘a standpoint incapable of being represented by either of the adult parties’. It was ‘overwhelmingly clear’ that her best interests were served by enabling her to participate as she wished.
13.5 The Hague Convention – jurisdiction
13.5 (a) Habitual residence
Children can have a different habitual residence to the parent with whom they live
Lord Wilson so held in Re LC (Children)  UKSC 1 where four children were held to be habitually resident in England despite having lived in Spain with their mother after their parents’ relationship broke down.
13.8 Hague Convention – defences to a return application
13.8 (c) Consent (Article 13(a))
In Re F (Abduction: Consent)  EWHC 484 (Fam) the mother’s argument that the father had consented to the child moving to England by helping her to leave was rejected by the High Court which ordered the child’s return to Denmark.
13.8 (e) Grave risk of harm, or otherwise placing the child in an intolerable situation (Article 13(b))
In LS v. AS  EWHC 1626 (Fam) a Hungarian father failed in his attempt to have his three children (aged 2, 8 and 15) returned to Hungry from the UK. Hayden J ruled that the children ‘faced a grave risk of serious harm were they to be returned to Hungary’ because their father expressed no understanding of the reasons for his unpredictable, violent and tyrannical behaviour, and preventative measures had been ‘woefully ineffective’.
13.8 (f) Child objects to being returned (Article 13)
How the child’s views are conveyed to the court In K v. B  EWHC B7 (Fam) a 15 year-old boy who objected to bring returned to Hungary was invited to attend court and speak directly to the judge with the assistance of an interpreter and a Cafcass officer.
January 2014 update
Government statistics show increasing child abductions
Figures from the Foreign & Commonwealth Office (FCO) and the charity Relate show that the number of children being abducted has more than doubled over the last decade. The FCO dealt with 580 cases of parental child abduction in 2012-13, more than twice the 2003-4 figure of 272. Relate has reported that it dealt with 447 cases during 2013, involving 616 children, with noticeable increases after Christmas 2012 and in September 2013 following the end of the school holidays.
Procedural irregularities in a hearing for a return order under the Hague Convention can constitute a breach of art. 8 of the ECHR as the following case shows:
13.5 The Hague Convention - jurisdiction
The High Court can have jurisdiction to hear a return application under the Hague Convention even if a child is not present in the UK. In the following case the question for the Supreme Court was whether the High Court of England and Wales has jurisdiction to order the ‘return’ to this country of child (who has never been present in the UK) on the basis that the child is habitually resident in the UK or has British nationality. The case is also important because of Lady Hale’s interpretation of ‘habitual residence’ for the purposes of the Hague Convention (see 13.5(a)) which overturns that of Lord Scarman in R v Barnet London Borough Council ex parte Shah  2 AC 309. The Supreme Court unanimously held that the High Court had jurisdiction to hear a case under the Hague Convention even if a child is not present in the UK. It had so under the Crown’s ancient power as parens patriae over those who owed it allegiance as British nationals. In other words, the court had an inherent jurisdiction to make the orders in this case on the basis of the child’s British nationality.
In the following case the question for the Supreme Court was how the UK courts should deal with a case where a child is brought to the UK pursuant to an order made abroad in proceedings under the Hague Convention on Abduction which is later over-turned on appeal:
13.8 The Hague Convention – defences to a return application
13.8(f) Child objects to being returned (Article 13)
In the following case the father’s appeal against the High Court’s decision not to order the return of his three children to Norway was refused.