The Hague Convention cannot be invoked….. Article 12 tested again!

CARI – Child Abduction Recovery International has dealt with several cases over the years where left behind parents have exhausted all avenues within their home courts, the abductors courts and invoking the Hague Convention to no avail. In the majority of cases this is due to Article 12 coming into play and being enforced.

To summarise Article 12 if the convention finds a child has been wrongfully removed or retained an order shall be issued to return the child to the habitual country unless more than 12 months has passed and it can be proven the child has settled into their new environment.

A recent case between Australia and the United Kingdom (click here to see recent case) has put Article 12 to the test and challenging the principles of the Abduction Convention.

In May 2015 a father agreed to his wife taking their children to the UK from Australia for an 8 week holiday. The mother then extended the stay to 12 months with the consent of the father. Unbeknown to the father the mother used this time to apply for work, place her child in school and set about seeking british citizenship for the children. Despite the father pressing her for a return date the mother remained vague about when until June 2016 when she stated that she was remaining in the UK permanently.

The father immediately took legal action by making an application under the Abduction Convention. As well as the father seeking return of the children to Australia it was also argued when the mother had made the decision not to return. Although she had notified the father in June 2016 her actions told a different story. The judge found in favour of the mother stating the children’s habitual residence was now in the UK and therefore could not be returned to Australia.

Upon appeal the decision was overturned deeming the father could return the children to Australia as they determined there was a legal principle of “anticipatory retention”

The case has now reached the Supreme Court and the issue of “anticipatory retention” is being argued. This is a prime example of the flaws of the Abduction Convention. Too many times we see parents being granted the ruling those children who have resided in the destination country for more than 12 months being granted habitual residence there and left behind parents feeling that all avenues exhausted.

This case is pushing the Abduction Convention to its limit with the examination of wrongful retention. If the mother flew to the UK for a holiday and then promptly set about enrolling her child into preschool and seeking citizenship for her children long before informing the father isn’t that planning retention? Retention is proven when the travelling parent unilaterally makes the decision for the child ultimately expunging the parental rights of the left behind parent. In our eyes seeking citizenship for the children without the father’s consent is consistent with expelling his rights to make decisions as a father.

This is a common tactic of parents that abduct or retain their children to countries that are signatories to the Convention. They leave on the promised intention of a holiday and then drag out the return until they have established the habitual residence therefore making the application to the Hague by the left behind father irrelevant. What courts need to release that “anticipatory retention” commences long before the children have left the country. The abductor has a plan to integrate the children into a new environment and ensure she has support in the destination country. The abductor then lulls the left behind parent into a false sense of security that the children are merely travelling on a holiday.

By the time the children hop off the plane in the destination country the retention is not only anticipated but has now been executed. We welcome that Article 12 of the convention is not just being accepted at face value and that the concept of “anticipatory retention” is being challenged. We can only hope this sets a precedence to give other left behind parents a fighting chance of getting their children back.

May this also be a reminder that the Abduction Convention desperately needs to be reviewed? It does not work in its current format and if it is honestly there to act in the best interests of the child then there is a lot of work to do as currently it is failing!

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