The Hague convention was drawn up with parents who flee overseas with their children in mind. Photograph: Ken Welsh/Alamy
More than 30 years ago the Hague convention on the civil aspects of international child abduction was drawn up with its authors “desiring to protect children internationally from the harmful effects of their wrongful removal” from their home country. The convention requires signatory countries to return children who have been unilaterally removed abroad so that the courts in their home countries can decide on the future arrangements for them.
The typical case the framers of the treaty had in mind was one in which a parent snatched a child away from its primary carer and fled overseas. Now, with relationships between people of different nationalities more commonplace, the situation is often that one of the parents takes the children back to his or her country of origin. That was the position in Re E, a case decided by the supreme court last week.
Historically the English courts, in contrast to those of a number of other signatories, have taken their treaty obligations very seriously and, applying the convention strictly, have returned children to their countries of habitual residence. In doing so they have frequently rejected a mother’s attempt to rely on the limited exceptions to the convention obligations, most commonly that a return would expose the child to a grave risk of physical or psychological harm.
The British mother in Re E who had left her allegedly violent Norwegian husband to come with the children to England was ordered by a high court judge to return, with safeguards being put in place pending a court decision in Oslo. The mother appealed, arguing that the convention conflicted with her own and her children’s article 8 rights to private and family life (under the European convention on human rights) and with the United Nations convention on the rights of the child, which requires any action concerning children to be determined in accordance with their best interests.
Given the English courts’ traditional adherence to the aims of the Hague convention, it is not surprising that the supreme court rejected the mother’s appeal in Re E and ordered her and the children’s return to Norway. In doing so it reasserted the principles that have underpinned the traditional approach, that one parent’s unilateral actions should not be allowed to pre-empt a legitimate dispute about a child’s future and that a home country’s courts are likely to be best placed to assess the evidence and information surrounding such a dispute.
The supreme court’s decision is arguably at odds with the judgment of the European court of human rights in Neulinger, in which the Strasbourg court decided that, even where there was no grave risk, a forced return could interfere with the mother’s and child’s right to a private and family life. The Neulinger decision suggests that the country being asked to return a child to its home country should undertake the investigation into the best future arrangements for the child.
The English court has reconciled the conflict, asserting that the convention is consistent with the article 8 right to private and family life; the supreme court decided that the convention properly balances the two key aspects of a child’s best interests in the context of wrongful removal from their home country: to be reunited with their parents and to be brought up in a safe environment.
What this means in practice is that the English courts will continue to be reluctant to refuse the return of a child wrongfully brought here from overseas. Whether other signatories of the convention will be as strict in its application remains to be seen. The list of member countries continues to grow – Japan recently ratified the convention and India is under pressure to do the same soon. How they and other countries will reconcile their treaty obligations with those imposed by other instruments of international law is unclear.
Joe Vaitilingam is a partner at Hughes Fowler Carruthers solicitors, specialising in financial and children issues arising on divorce