The Hague Convention on the Civil Aspects of International Child Abduction

International child abduction by one parent has been on the rise and can have extremely serious consequences.  The Hague Convention on the Civil Aspects of International Child Abduction (concluded at The Hague on 25 October 1980) aims to protect children, at the international level, from the harmful effects of possible wrongful removal or retention, and to establish procedures to ensure the prompt return of the child to the State of its habitual residence. It is informed by the fact that not only does child abductions violate the rights of custody for the other parent, but it also constitutes a traumatic experience for the child who is cut off and is forced to adapt to a different way of life. The Hague Convention has been ratified by all Member States of the European Union.

In particular, Article 1 of the 1980 Hague Convention states: “The objects of the present Convention are:

• To secure the prompt return of children wrongfully removed to or retained in any Contracting State
• To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” (See CJEU – judgment C-111/8-7-17, published at: https://eur–lex.europa.eu/legal–content/EN/TXT/?uri=CELEX:62017CJ0111).

In cases of international child abduction, Council Regulation (EC) No. 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility applies. That Regulation is based on the provisions of the Hague Convention, operates complementarily, and prevails over it pursuant to Article 60 thereof.

According to Article 3 of the Hague Convention—which is its fundamental provision—the removal or retention of a child younger than sixteen years (per Article 4) is wrongful:

• Where it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention
• At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised for the removal or retention. The rights of custody mentioned… may arise by operation of law, judicial or administrative decision, or an agreement having legal effect under the law of that State.

For the protection of the Hague Convention to be triggered, it is not sufficient that the applicant for the return of the minor child holds a recognized right of custody. In contrast, the custody must have been exercised before the events constituting the wrongful removal or retention occurred.

Under Articles 2 and 11(1) of the Convention on the Civil Aspects of International Child Abduction, in cases of wrongful removal or retention of a minor child, the judicial (or administrative) authorities of the Contracting States are required to apply urgent procedures to secure the return of the child.

These procedures are initiated by the Central Authority provided for by the Convention, which, in Greece, is the Ministry of Justice acting through the locally competent legal offices of the State Legal Council. The relevant application is filed with the Single-Member Court of First Instance either at the place where the child was found after the abduction or at the residence or domicile of the abductor (see Thessaloniki Court of Appeal 722/2003, Nomos; Thessaloniki Court of Appeal 3662/1996, EllDni 1997.854) and is tried under the provisional measures procedure (Articles 682 et seq. of the Greek Code of Civil Procedure), which, as an urgent procedure, complies with the requirements of the said International Convention (Single-Member Court of First Instance of Thessaloniki 9457/2012).

The Habitual Residence of the Minor Child

The issue of habitual residence is decisive for courts in cases of international child abduction. This issue has concerned both national courts of the Contracting States and the CJEU in cases of international abduction and parental responsibility.

In Case C-523/07, the Court of Justice stated: “…the concept of ‘habitual residence’ in Article 8(1) of Regulation No 2201/2003 must be understood as the place which reflects some degree of integration of the child in a social and family environment. To that end, account must be taken of the duration, regularity, conditions, and reasons for the stay in the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of schooling, linguistic knowledge, and the family and social relationships of the child in that State.

The national court is responsible for establishing the child’s habitual residence, taking account of all the specific factual circumstances of each case. […] The parents’ intention to settle with the child in another Member State, as shown by certain tangible steps, such as the purchase or rental of accommodation in the host Member State, may be an indication of the transfer of habitual residence.” (CJEU, 2.4.2009, Case C-523/07 PPU, available at: https://eur–lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007CJ0523:EL:HTML).

Greek Case Law

To begin with, it should be noted that cases of international child abduction handled by Greek courts often concern situations in which one of the parents leaves the family’s place of habitual residence to go on holiday to Greece with the minor children. However, their real intention is to settle permanently in Greece with the children without the other parent’s consent.

Judgment 9457/2012 of the Single-Member Court of First Instance of Thessaloniki held that the retention of the minor by his mother (the respondent) in Greece was wrongful because it breached custody rights recognized to the father jointly with the mother under the law of the United Kingdom, where the child had his habitual residence before the retention. The Court noted that the respondent unlawfully retained the child in Greece not only without the consent or agreement of the father, but to his express opposition. The Court held that the child’s stay in Greece from 11.8.2011 to 18.9.2011 was temporary (for holidays) and could not be regarded as habitual residence within the meaning of the Hague Convention combined with Regulation 2201/2003. The application was granted, and the child’s return to his habitual residence in London, UK, was ordered.

The issue also arose in judgment 697/2006 of the Patras Court of Appeal. A mother brought minor children to Greece for holidays on 19-7-2005 to visit relatives. However, she did ot return to the United States on 26-8-2005 as agreed with her husband and as indicated on her ticket. The father did not receive a notice of her decision not to return and waited for the return of his wife and children. When informed of her intention to settle permanently in Greece with the children, he initiated the Hague Convention procedure by applying to the Ministry of Justice. The Court held that the habitual residence of the parents and their children was in New Mexico, USA. This is where they had permanently resided since their marriage, and the mother wrongfully retained the children in Greece without the father’s consent, who had exercised custody before the wrongful retention. The application was granted, and the mother was ordered to return the children to their habitual residence in New Mexico, USA.

Exceptions to the Rule of Returning the Child to the Place of Habitual Residence

Article 13(1) of the 25.10.1980 Hague Convention constitutes the exception to the rule of the child’s prompt return to its habitual residence. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that:

• The person, institution, or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
• There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

1. The Concept of the Actual Exercise of Custody (Art. 13(1)(a))

The Convention’s definition of “rights of custody” is given in Article 5(a): “For this Convention… ‘rights of custody’ shall include rights relating to the care of the person of the child and, the right to determine the child’s place of residence.” Therefore, the person holding custody alone may determine the child’s habitual residence.

Article 5 of the Hague Convention further states that, where under the law of the child’s habitual residence the parents exercise custody jointly, the unilateral action of one parent in taking the child to another country without the other parent’s consent amounts to a breach of custody rights.

It should also be noted that Article 2(9) of Regulation 2201/2003 defines “parental responsibility” (rights of custody) as comprising “all rights and duties relating to the person of the child,” and the right to decide on the child’s place of residence.

Regarding the person entrusted with custody, Article 2(11)(a) states that the wrongful character of the child’s removal depends on the existence of “rights of custody… arising by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the Member State in which the child was habitually resident immediately before the removal or retention.

Regulation 2201/2003 does not determine which person must hold the right of custody that, if breached, renders a child’s removal wrongful within the meaning of Article 2(11). Instead, the regulation refers to the determination of who holds that right to the law of the Member State where the child was habitually resident immediately before the removal or retention.

The exercise of custody consists of acts aimed at caring for the child’s nourishment, clothing, health, upbringing, education, and rearing. This also includes the general caring for the child’s physical, intellectual, and moral development. Under Article 5 of the Hague Convention, custody is exercised when the holder is in practice exercising it, even if the child does not live with that holder due to the parents’ separation.

It is emphasized that, for the exception in Article 13(a) to apply, the abducting parent must prove that the applicant for the child’s return was not exercising custody; mere prima facie showing of the allegations is not sufficient.

2. The Concept of “Grave Risk” of Physical or Psychological Harm or an “Intolerable Situation” (Art. 13(1)(b))

First, it should be noted that Article 13(b) of the Hague Convention is the provision most often invoked by abducting parents, exploiting its wording. For this reason, the provision must be interpreted narrowly and restrictively, as analyzed below.

The literal interpretation is that the risk is qualified as “grave.” However, physical or psychological harm is not similarly qualified. The physical or psychological harm referred to in Article 13(1)(b) must be tantamount to the creation of an intolerable situation—i.e., a serious harm. This grammatical interpretation was adopted by the High Court of Australia in DP v. Commonwealth Central Authority (27/06/2001, High Court of Australia, available in the INCADAT database, https://www.incadat.com).

In U.S. case law—which has extensively addressed the Convention—the need for a narrow interpretation of the exceptions to the return rule is confirmed. In Ciotola v. Fiocca (12/03/1997, U.S. District Court for the Southern District of Ohio, available in INCADAT), reliance is placed on leading precedents (Friedrich v. Friedrich, Caro v. Sher), and it is reiterated that a grave risk of physical or psychological harm exists when:

• The child was in immediate danger before the custody dispute could be resolved.
• The child suffered severe abuse, neglect, or extreme emotional dependence, and the courts of the habitual residence are unable or unwilling to provide adequate protection. In Friedrich v. Friedrich, it was held that a grave risk exists when the child’s return would place the child in immediate danger before the custody dispute is resolved—for example, returning the child to areas afflicted by war, famine, or epidemics.

Further, the term “intolerable situation” concerns the child itself, not the abductor, and refers to conditions relating to and connected with the minor.

Finally, international case law notes that the person who acted unlawfully should not benefit from the act and invoke its consequences to claim the existence of a grave risk. For this reason, the conditions of Article 13(1)(b) should be found to exist only in substantial cases that go beyond the inevitable, ordinary disturbances caused by the return procedure (T.B. v. J.B., 19/12/2000, Court of Appeal (England), available in INCADAT).

Regulation (EC) No. 2201/2003 limits the exceptions in Article 13 of the Hague Convention. In particular, Article 11(4) of the Regulation provides that a court may order the child’s return even if return could expose the child to risk under Article 13(b) of the Convention, where it is established that adequate arrangements have been made to secure the protection of the child after his or her return.