The international agreements

• The Hague Convention
• Hague Convention countries
• The European Convention
• European Convention countries
• Operation of the Conventions
• The Revised Brussels II Regulation (PDF: 223kb)
• Official Practice Guide (PDF: 283kb)
• Operation of Revised Brussels II Regulation
• Brussells II Countries

The Hague Convention
The United Kingdom is party to an international convention under which legal procedures are agreed with a number of other countries to assist in the return of a child who has been abducted. The convention is the Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention works on the principle of returning children aged under 16 years who are wrongfully removed or retained away from their country of habitual residence. In order to be considered wrongful, a removal or retention must be in breach of rights of custody which are actually being exercised by a person, an institution or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention.

Under the Hague Convention courts are required to order the return of a child wrongfully removed or retained away from their country of habitual residence, there are however a number of grounds on which a return order can be refused. These grounds include; the court being satisfied that to return the child would expose him/her to a grave risk of physical or psychological harm, or otherwise place her/him in an intolerable situation; the child objects to being returned and is mature enough to have his/her views taken into account. The court may also refuse to return a child if the applicant was not actually exercising rights of custody at the time of removal or consented to or subsequently acquiesced in the removal or retention.

The Revised Brussels II Regulation
This is Council Regulation (EC) No 2201/2003 of the European Parliament which has effect from 1 March 2005 (the Revised Brussels II Regulation). The Regulation will be applied to cases of parental child abduction within the European Union and to the enforcement of orders for contact or access within the European Union.

The Regulation applies the Hague Convention but modifies its application in several important ways. The Regulations gives greater emphasis than the Hague Convention to hearing the views of children provided this is appropriate for their age and maturity. The Regulation will also require that the left behind parent be given an opportunity to be heard before a decision not to return a child is made and the Regulation narrows the grounds on which an order refusing to return a child can be made. The most far reaching change which the Regulation makes is that it provides an opportunity for the left behind parent to litigate the issue of residence/custody in his/her own country if a return order is not made. If the left behind parent in this situations seeks and obtains an order that requires the return of the child, that order must be enforced in the country in which the child is located notwithstanding the earlier non return order.

The European Convention
From 1 March 2005 the European Convention will only operate with countries which are not members of the European Union. Applications from European Union countries will be dealt with under the Revised Brussels II Regulation.

The European Convention is rarely used in abduction cases because the Convention only operates where an order already exists. The Convention has more frequent application to the enforcement of access orders.

Orders made in European Convention countries are recognised, but must be registered before being enforced. Enforcement may not necessarily follow immediately after registration. There are a number of grounds on which enforcement can be opposed. These are set out in articles 9 and 10 of the European Convention.

Operation of the Conventions

1. This note, which has been prepared by the Lord Chancellor's International Child Abduction and Contact Unit (the ICACU), describes in outline the purpose and operation of two international conventions dealing with international child abduction to which the United Kingdom is a party. For information about abductions within the European Union ( other than Denmark) see information on Council Regulation (EU) 2201/2003 (Revised Brussels II). For information on non Convention countries see the general index on this site.
2. Both the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children have the same purpose; to deter international child abduction and to secure the return of children wrongfully removed or kept away from their home country. Although they are both founded on the well- recognised general principles that decisions about the care and welfare of children are best made in the country with which they have the closest connection, and that orders made in one state should be recognised and enforced in another, the two Conventions have different purposes.
3. The Hague Convention works on the principle of returning children who are wrongfully removed or retained away from their country of habitual residence. A wrongful removal or retention is defined as being in breach of rights of custody which are actually being exercised by a person, an institution or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention. Although under the Convention courts are required to order the return of a child wrongfully removed or retained away from its country of habitual residence, there are a number of grounds on which a return order can be refused. These grounds include the court being satisfied that returning the child would expose him to a grave risk of physical or psychological harm, or otherwise place the child in an intolerable situation, the child objecting to being returned and being old and mature enough to have his views taken into account. The court may also refuse to return a child if the applicant was not actually exercising rights of custody at the time of removal or subsequently consented to or acquiesced in the removal or retention. Since 1 March 2005 abductions within the European Union (other than Denmark) will be governed by the Hague Convention as modified by Council Regulation (EU) 2201/2003 (Revised Brussels II). For information on Revised Brussels II see the general index on this site.
4. The European Convention works on the principle of the mutual recognition and enforcement of orders made in the contracting state. Accordingly, there must be in existence an order of a court or other authority with the necessary jurisdiction in a Convention Country, which can be recognised and enforced in the receiving state.
5. In each contracting state there is an administrative body, known as the Central Authority, whose duty is to send and receive requests for the return of children or the enforcement of orders, to provide information about the law of their state, exchange information and generally further the objects of the Conventions.
6. The Convention countries all have different legal systems, and therefore although each country will apply the same Convention principle, their procedures may be very different. Countries have different ways of hearing cases and taking evidence. Some provide financial assistance to litigants, and others do not. In some countries it is the Central Authority that makes the application for the return order, in others the application is made by the aggrieved parent by local lawyers or, for example, the public prosecutor.

Operation of the Revised Brussels II Regulation

Child Abduction and Enforcement of Parental Responsibility Orders within the European Union
Council Regulation (EC) No 2201/2003 of the European Parliament will have effect from 1 March 2005 (Revised Brussels II Regulation). The Revised Brussels II Regulation which is also known as Brussels II bis and Brussels IIa will be applied to cases of parental child abduction within the European Union and to the enforcement of orders for contact or access within the European Union.

From 1 March 2005 British and other European Union orders dealing with parental responsibility will be enforceable throughout the European Union with the exception of Denmark. The legislation which applies is Council Regulation (EC) No2201/2003 and is commonly referred to as Revised Brussels II, Brussels II(a) or Brussels II bis. If the order you are seeking to enforce was made in proceedings commenced after 1 March 2005 it will be directly enforceable throughout the European Union. If the order was made in proceedings commenced prior to that date it may be enforceable under the transitional provisions of the Regulation. Orders made in Scotland and Northern Ireland are also covered by the Regulation. The Revised Brussels II Regulation has also introduced a fairer and more streamlined process for dealing with parental abductions within Europe. The new process is based on the Hague Convention but narrows the grounds on which a return can be refused and gives greater prominence to hearing the child's views in these proceedings. The Revised Brussels II Regulation also provides for the State from which the child has been abducted to have the final say on whether the child should be returned. If your child is abducted within the European Union, the Revised Brussels II Regulation will apply to your case.

The Revised Brussels II Regulation does not apply to Denmark.

Abduction cases under the Revised Brussels II Regulation
The Revised Brussels II Regulation will apply to cases where a child has been abducted to or from a country within European Union, other than Denmark, from 1 March 2005. For cases concerning England and Wales you should contact the International Child Abduction and Contact Unit (formerly the Child Abduction Unit) [insert link which is the Central Authority for England and Wales. For cases involving Scotland and Northern Ireland you should contact the respective Central Authorities. See contact details

In England and Wales, applications under the Revised Brussels II Regulation will processed largely in the same way as applications under the Hague Convention.

Incoming cases
Where a child has been abducted to England and Wales from a country within the European Union, other than Denmark, the Central Authority of the country concerned will forward an application to the Central Authority for England and Wales. The Central Authority for England and Wales will then forward the application to an experienced solicitor who will make all the necessary applications to the court.

All incoming cases will be dealt with in London by a High Court judge of Family Division in the same way as cases under the Hague Convention. The court will exercise control over the progress of the case, and the litigants so that time limits in the Revised Brussels II Regulation can be met.

Non means tested (free) legal aid will be available for return applications under the Revised Brussels II Regulation.

Outgoing cases
Where a child has been abducted from the United Kingdom, the parent seeking a return will forward their application to the relevant Central Authority. Once the Central Authority receives the application, it is sent off, with translations if necessary, to the Central Authority of the country to which the child has been abducted. Thereafter, the Central Authority will monitor the progress of the case, liase with the Central Authority of the requested state and the applicant, give advice about English law and do all that it can to help bring the case to a successful conclusion.

In order to come under the Revised Brussels II Regulation

the case must meet the same criteria as for the Hague Convention, That is :

• the child must be under 16
• the child must have been habitually resident in a Hague Convention Country prior to the abduction
• the applicant must have and have been exercising rights of custody in relation to the child
• the abduction must have taken place after the Hague Convention came into force between the United Kingdom and the country to which the child has been taken in addition,
• the abduction must have been from or to a country within the European Union other than Denmark and
• the application for return must be made after 1 March 2005

Costs
The cost of an application for the return of a child is often a matter of concern to parents. In most countries no payment for legal proceedings is required for applications made under the Hague Convention and this will remain the case under the Revised Brussels II Regulation. The International Child Abduction and Contact Unit will be able to give you information regarding legal costs in specific countries.

Non means tested (free) legal aid is available to meet the applicant's legal costs for applications for the return of a child from the England and Wales under the Revised Brussels II Regulation.

Expenses incurred when returning the child are not covered under the Revised Brussels II Regulation but applicants may request in the questionnaire that an order for travel costs be made against the person who has removed/retained the child. The court will consider the request but is not bound to make such an order.

Contact with your children within the European Union

From 1 March 2005 orders dealing with parental responsibility including contact with children made in the United Kingdom and any other European Union Country other than Denmark, will be enforceable throughout the European Union with the exception of Denmark. The legislation which applies is Council Regulation (EC) No2201/2003 and is commonly referred to as Revised Brussels II. If the order you are seeking to enforce was made in proceedings commenced after 1 March 2005 it will be directly enforceable throughout the European Union. If the order was made in proceedings commenced prior to that date it may be enforceable under the transitional provisions of the Revised Brussels II Regulation. Orders made in Scotland and Northern Ireland are also covered by the Revised Brussels II Regulation. Orders made in the Crown Dependencies and the Overseas Dependant Territories are not covered by the Revised Brussels II Regulation.

You have existing contact orders

If the orders were made in proceedings commenced after 1 March 2005 you will be able to enforce those orders in the European Union country in which you child is living (other than Denmark) under the Revised Brussels II Regulation. You will need to obtain a certificate from the court which issued the orders. You should contact your solicitor or the Central Authority. If you are seeking to enforce orders in Denmark you may be able to enforce them under the European Convention.

If the orders were made in proceedings commenced prior to 1 March 2005 the orders may still be enforceable under the transitional provisions of the Revised Brussels II Regulation. You should contact your solicitor or the relevant Central Authority to discuss the circumstances.

If the orders are not enforceable under the Revised Brussels II Regulation, you may be able to register the orders in the country in which your child is living under the European Convention.

You do not have existing contact orders

You may be able to make an application under article 21 of the Hague Convention if your child is located in a Hague convention country. If not you will need to establish contact orders in the country in which your child is living. You should seek advice from the relevant Central Authority.

Procedure

Cases in England and Wales which come under either the Hague Convention, the Revised Brussels II Regulation or the European Convention will be handled by the International Child Abduction and Contact Unit. If the Unit is unable to secure voluntary compliance with the orders the application will be forwarded to a solicitors with experience in these matters. The solicitors will then take instructions, secure legal aid if you qualify and commence any necessary proceedings.

If your case does not come under the Conventions or the Regulation you will need to secure the services of a lawyer in the country in which your child is living. The Foreign and Commonwealth Office will be able to offer assistance in locating a solicitor and may be able to provide similar assistance to that provided in the case of abduction to a non Hague Convention country. The contact details of the Foreign and Commonwealth Office are set out below.

Foreign & Commonwealth Office
Consular Division
Old Admiralty Building
London, SW1A 2PA
Tel: 020 7008 0200
Website: http://www.fco.gov.uk/

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The Hague Convention

Abduction cases are covered by articles 3 and 8 of the Hague Convention on the Civil Aspects of International Child Abduction. They are divided into incoming and outgoing. Incoming cases are those in which a child is abducted from a Convention Country into the United Kingdom and outgoing cases are those in which a child is abducted from the United Kingdom to another Convention Country.

Incoming cases

A parent whose child has been abducted to or retained in England and Wales may make an application for the return of the child to the Central Authority of the country in which they are living. That Central Authority will forward the application to the Central Authority for England and Wales. If they prefer a parent may apply directly to the Central Authority for England and Wales which is known as the International Child Abduction and Contact Unit (ICACU). The ICACU will assess the application and if it meets the requirements they will refer it to an experienced solicitor drawn from a firm familiar with these cases. The solicitor appointed is then responsible for:

• making an application for legal aid see Legal Services Commission,
• taking the applicant's instructions,
• assembling the evidence, if necessary with help from the ICACU
• filing affidavits of fact and about foreign law and
• instructing counsel and attending the hearing.

The solicitor will often obtain orders to protect the child immediately after the proceedings start. These orders could include orders:

• requiring the surrender of passports, or
• prohibiting the removal of the child from the jurisdiction or a specific address.

If the whereabouts of the child is not known, the solicitor may make an application for a 'seek and find order' (Family Law Act, 1986 Section 34), or orders requiring the disclosure of information (Family Law Act, 1986 Section 33).

All incoming cases are dealt with in London by a High Court judge of the Family Division, and the High Court official responsible for listing cases, known as the Clerk of the Rules. This ensures that these cases are listed for hearing very quickly. Adjournments are limited to a maximum of 21 days, so that the court exercises control over the progress of the case.

Applicants are not normally required to personally attend the hearing. Non means tested (free) legal aid is available to applicants seeking the return of a child under the Hague Convention.

All applications made after 1 March 2005 which involve abductions from countries within the European Union (other than Denmark) will be handled under the Revised Brussels II Regulation which is discussed below.

Outgoing cases

Outgoing abduction cases are those where children are abducted or retained away from England and Wales in a country which is a party to the Hague Convention. Cases within the European Union are handled under the Revised Brussels II Regulation which is explained in the next section. In outgoing cases the ICACU discusses the circumstances with the applicant or their solicitor and may ask them to fill in an application (questionnaire) for the return of the child. Application forms and explanatory notes are available on this website. The ICACU may also ask the parent to make a written statement, and provide copies of any court orders. It is useful to provide a recent photo of the child. An application is then prepared on the basis of the material provided. That application and supporting documents is sent off, with translations if necessary, to the Central Authority of the country to which the child has been abducted or retained. Thereafter, the ICACU will monitor the progress of the case, liase with the Central Authority of the requested state and the applicant, give advice about English law and do all that it can to help to bring the case to a successful conclusion. There is no charge for the services of the ICACU.

It is important to understand that the speed and manner in which a case is conducted in the overseas country are entirely dependent upon the internal procedures of that country. Every country has exclusive jurisdiction within its own territory. The ICACU provides a point of contact between the applicant or solicitor and the Central Authority of each country but it cannot force another country to decide cases or enforce laws in a certain way. It will, however do all it can to press for a swift resolution of the matter and will keep you or your solicitor informed of progress.

The Revised Brussels II Regulation

• Revised Brussels II Regulation
• Brussels II Guide
• Operation of Revised Brussels II Regulation

This Regulation applies where a child has been abducted to or from a European Union country. Forms are available from the ICACU or its website The same form is used for all abductions whether they be under the Hague Convention or the Revised Brussells II Regulation: Application forms and explanatory notes are available on this website.

In general terms these applications are processed in the same way as applications under the Hague Convention.

There are 4 major differences in applications which come under the Revised Brussels II Regulation. They are:

• The court is required in every case to hear the views of the child unless this appears inappropriate having regard to the age or degree of maturity of the child (Revised Brussels II Regulation article 11.2).
• There is no process prescribed for hearing the child. It is anticipated that in England and Wales this will be done through an expert such as a CAFCASS officer.
• The court is required to hear the views of the applicant parent if it is considering not returning the child. Again no process is prescribed for how this is to be done (Revised Brussels II Regulation article 11.5)
• The court may not refuse to order a return even if a defence of grave risk to the child has been made out under article 13(b) of the Hague Convention provided that it is established that adequate arrangements have been made to ensure the protection of the child after his or her return.
• Where an order refusing a return has been made, the applicant parent (or the abducting parent) may within 3 months of the non return order, request that the court of the country from which the child was abducted hear and determine the issue of custody/residence of the child. If after such a hearing the court in the country from which the child was abducted determines that the child should return to that country then the court of the country to which the child has been abducted must enforce that order notwithstanding its previous order not to return the child. If no application is made within the 3 month period, the country to which the child has been abducted will have jurisdiction to make decisions about the child including custody/residence and access/contact.

The European Convention

• Conventions
• The Central Authority
• Operation of the Conventions
• European Convention countries

Applications under the European Convention are dealt with by the ICACU in the same manner as return applications under the Hague Convention. The ICACU form does not ask the applicant to specify which convention he or she wishes to invoke, and the ICACU will often suggest the use of one or the other.

Where an order exists, the applicant may find it to their advantage to use the European Convention in access cases because the existing order may be enforced. In addition, applicants are entitled to free legal aid without being subject to a means tests.

Applications under the Convention between countries which are also members of the European Union (other than Denmark) will be handled under the Revised Brussels II Regulation from 1 March 2005.

Costs of an application for the return of a child

The cost of an application for the return of a child is often a matter of concern to parents. In most countries no payment for legal proceedings is required for applications made under the Hague Convention. The ICACU will be able to give you information regarding legal costs in specific countries. For example in the USA, legal aid is generally not available. Efforts are therefore made by the US Central Authority, in cases of financial need, to provide legal representation for applicants either at a reduced rate or free of charge.

Non means tested (free) legal aid is available to meet the applicant's legal costs for applications for the return of a child made in the UK under the Revised Brussels II Regulation and European Convention.

Expenses incurred when returning the child are not covered by the conventions nor by the Revised Brussels II Regulation but applicants may request in the questionnaire that an order for travel costs be made against the person who has removed/retained the child. The court will consider the request but is not bound to make such an order.

There is no charge for the services provided by the Central Authority, including the translation of documents necessary to an application under one of the Conventions or the Regulation.

Mediation

Both the Hague Convention and the Revised Brussels II Regulation encourage the resolution of disputes through mediation. Article 7(c) of the Hague Convention requires Central Authorities to secure the voluntary return of the child or to bring about an amicable resolution of the issues. Article 55(e) of the Revised Brussels II Regulation requires Central Authorities to facilitate agreement between holders of parental responsibility through mediation or other means and to promote and facilitate cross-boarder cooperation. The ICACU and the lawyers to which cases are referred encourage parents to try to resolve their differences without the necessity of a contested hearing.

This Page Was Last Updated

Sunday 7 January, 2007 13:40

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