International Child Abduction (L15) Flashcards
How did Lord Hughes JSC define international child abduction in A v A (Children) (Habitual Residence: Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60?
“The trans-national movement of children in the course of disputes about their upbringing, and the associated forum-shopping by parents and others, is a major international problem.”
What are the 4 categories of cross-border custody disputes?
Hague Convention cases: regulated in UK by Child Abduction and Custody Act 1985, implementing 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Best case scenario for non-abducting parent (bereft parent) is if the state is Hague contracting.
Intra-EU cases: 1980 Hague Convention complemented by BII bis / BII ter.
Intra-UK cases: Family Law Act 1986, Pt I.
Common law cases: i.e. cases outside the ‘net’ of the HC, regulated by common law rules.
Worst for a bereft parent.
What are the two types of abductions that Scottish courts are concerned with?
Incoming abductions: abduction of child to Scotland.
- From Hague Contracting State: 1980 Hague Convention.
- From elsewhere in UK: FLA 1986.
- From non-Hague State: Scottish common law rules.
Outgoing abductions: abduction of child from Scotland.
- To Hague Contracting State: 1980 Hague Convention.
- To elsewhere in UK: FLA 1986.
- To non-Hague State: hope for the best but fear the worst…
What is the aim of the 1980 Hague Convention on Civil Aspects of International Child Abduction?
To uphold custody rights where a child has been wrongfully removed from, or retained outwith, the state of his/her habitual residence (i.e. to restore the status quo).
The state of the status quo habitual residence is best placed to decide what should happen to the child.
Art 7: a central authority must be charged with the situation.
They don’t charge expenses.
What are the key provisions of the 1980 Hague Convention?
Arts 3, 12 and 13.
How does the case of Perrin (1995) help us to understand “wrongful removal”?
Mother took 9 month old from France to Scotland.
After a year, the father raised a petition for return to France.
Scottish court examined this term.
Did it require Scottish court to fully investigate and determine the custodial rights of the parents and if there was a breach? No. Speed is important. This would take too long.
Removal was wrongful due to joint custody laws in France. This meant the Scottish court concluded there was a wrongful removal.
How does the case of Taylor v Ford (1993) help us to understand “wrongful removal”?
Father brought children from Canada to Scotland.
Father showed he did have a custody order in his favour.
This was enough for the Scottish to say the removal was not wrongful, the father had the rights.
How does the case of McCarthy (1994) help us to understand “wrongful removal”?
Parents had a separation agreement. The mother had day-to-day care, the father had access to the children.
Neither parent was to remove the children from Irish court jurisdiction.
Mother took the children to Scotland. She said it was not wrongful.
Argued the father’s rights of access depended on the separation agreement. Because he had failed to implement his duties under that agreement in terms of financial obligations, she was entitled to resile from the contract.
Court held the father had not substantially breached his obligations enough to treat the agreement as being at an end. Mother’s removal of the children was wrongful.
What is the classic example of “wrongful retention”?
Classic example is a holiday, but not returning them on the date they should have been returned.
How does Findlay (1994; 1995) help us to understand “wrongful retention”?
Wrongful removal and wrongful retention are mutually exclusive.
Mother got the proceedings confused, went for wrongful removal instead of wrongful retention.
Wrongful retention can only happen where a child has been lawfully removed from their habitual residence.
How does Re H [1991] help us to understand “wrongful retention”?
Wrongful retention is an act that occurs on a specific occasion.
How does ML v JH (2021) help us to understand “wrongful retention”?
Young child’s mother wanted an order for his return to Canada. Canadian mother, British father. Not married or cohabiting. Child born in Canada and a Canadian national. Lived his first year with mother’s sole custody in Quebec. Father only allowed visit him starting from the second year.
Parents made agreement that father could take him Scotland for a short period of time. Set a date he must be returned. Signed by both parents.
Father didn’t return him. Mother came to Scotland to try and return him herself.
Held this was a clear case of wrongful retention.
In breach of rights of custody put in place by the child’s habitual residence.
How does Re K (2014) help us to understand the meaning of “custody rights”?
Maternal grandparents looking after the child. They were in Lithuania. Mother had agreed they should look after the child, but revoked agreement and removed them to the UK.
In substance, mother had acted in breach of the grandparents rights of custody.
“Rights of custody” under the Convention has an autonomous meaning. Not the definition given in each individual legal system.
Courts willing to recognise rights as rights of custody.
How does Re G [2002] help us to understand the meaning of “custody rights”?
“Rights of custody” to be interpreted broadly to avoid the child being taken away from its primary carers.
How does A v A (Children) (Habitual Residence) [2013] UKSC 60 help us to understand the meaning of “habitual residence”?
“All are agreed that habitual residence is a question of fact and not a legal concept such as domicile” (per Baroness Hale, at [54]).
“ … The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce”.
