Children across borders: the impact and limits of the Hague Convention

What happens if you separate while living overseas, and only one of you wants to return home? What happens to the children when you no longer agree on where to live or, worse, when it is dangerous for one parent to stay in the country? If you take action without the other parent’s consent, chances are you will come up against the Hague Convention. We talked to Hague Convention expert Alex Ashmore of Ponsonby Chambers in episode 6 of the Divorce Café podcast about the impacts and limits of this law, and whether it is still doing its job.

What is the Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abductions was created in 1980 to prevent the kidnapping of children across international borders by their parents. Member countries sign up and are bound to return abducted children to their ‘country of habitual residence’ upon application by a guardian, unless specific defences are met.

The Convention does not make final decisions on who the child lives with and where. Rather it is a forum instrument to determine which country has jurisdiction to decide custody matters. The broad underlying principles are that it is not in children’s interests to be abducted, so the Convention should act as a deterrent, and that a child’s home country is best placed to make decisions about them.

How does the process work?

When a child has been taken or kept overseas, their other parent can contact their country’s Central Authority (a division of Government). The Central Authority appoints a lawyer to assess whether the Hague Convention has jurisdiction. The child must be in a country that has ratified the Convention, and the Applicant must have ‘Rights of Custody’ that have been thwarted.  “Are they a guardian? That’s really the test”, says Alex.

If the Central Authority agrees to take the case, the lawyer will work with the parent to file an application. Hague Convention cases frequently result in an order to return the child to the home country where the parties are able to apply to that country’s local Court to have their care, contact or relocation case heard.

Are there any exceptions?

A return under the Hague Convention can be successfully resisted if the parent who relocated the child has one of a short list of defences AND the Judge agrees the child should not have to return. Section 106 of the Care of Children Act 2004 outlines the defences available. They are:

1. The application was made more than one year after removal and the child is settled in their new country;
2. The applicant was not exercising rights of custody at the time of removal, or consented to or later agreed to removal;
3. There is a grave risk that the child’s return would expose them to harm or an intolerable situation;
4. The child objects to being returned and is of sufficient age and maturity to do so;
5. A return would breach the child’s fundamental rights permitted under the law.

Even if a defence is proved, return may still be ordered. “Never underestimate the importance of the discretion stage, because that is often where the battle is,” warns Alex.

Judicial discretion generally favours return in order to uphold the Convention as a deterrent to abduction. The tide is turning, however, with ‘grave risk’ being taken into consideration more often. Alex says it is a “no-brainer – you are never going to order a child back if you found it is grave risk”.

Is the Convention still doing its job?

The Hague Convention was created as a solution to last century’s problem of non-custodial parents removing children overseas. Nowadays it is more usually the custodial parent – often the mother – relocating overseas, and the non-custodial parent seeking return. This raises questions about the purposes and effects of the Convention, particularly in situations where abuse is present.

Two recent headline-grabbing cases in the Court of Appeal have confirmed the possibility of avoiding an automatic return where there is evidence of harm that outweighs the Convention’s underlying principles.

LRR v Col

LRR v COL began with a mother fleeing her abusive ex-partner via Women’s Refuge in Australia, returning home to New Zealand. The father applied for return of their pre-schooler to Australia. The Family Court found return would result in grave risk of an intolerable situation. This was overturned in the High Court, which took a more traditional approach and found the risk was unknown as the parties were now separated and – if risk existed – it affected the mother only, not the child. At the Court of Appeal the mother was given leave to introduce more evidence, Psychologists were brought in and the support provisions in Australia were questioned. The Court of Appeal found that a precarious situation for the mother was also precarious for the child. The Judge ruled the child did not have to return to Australia.

LRR threw a spanner in the works internationally, as it seemed a step too far. However, Alex points out that this was more like “evolution than revolution”. While the Court did take a side in welfare issues, it was not as radical as it first appeared. For decades the interpretation of ‘grave risk’ had been so narrow that it was almost impossible for it to be used as a defence. What LRR did was consolidate principles scattered through dozens of cases both in New Zealand and abroad. Alex says ultimately “you can’t assume the current country will be safe, you can’t not look at evidence because you think Mum is naughty.”

Roberts v Cresswell

Roberts v Creswell is a similar case, with the opposite result. In some ways, Alex says, it is LRR part 2. It began with a mother, abandoned by her husband in a foreign country. She relocated home to New Zealand, only for the father to apply for return of the children to France. The Family Court ruled the children would stay in France and have holidays with their mother in New Zealand. The mother appealed to the High Court, citing grave risk of an intolerable situation, due in part to the custody arrangements. The High Court found in her favour. This was overturned by the Court of Appeal, which found the evidence did not support grave risk. The mother applied for a last-minute stay of execution which was declined and the children were sent back to France.

As with LRR, the higher Court had access to more in-depth expert evidence and the case was won on this basis. This included a Parenting Order made in France which showed exactly what amended custody arrangements would look like, and expert psychological evidence countering the expert psychological evidence filed by the mother. The Court did not find that France would be safe, but rather that it would not be as bad as the mother had said. “Intolerable – it’s a big word”, says Alex.

The main takeaway from these cases is that both sides need to come to Court with proper evidence. Both these cases were won – and lost – on the evidence.

What needs to change?

The arc of justice seems to be moving in the right direction according to Alex, but there is room for improvement. The Hague Convention might result in better outcomes for families if Judges in New Zealand could impose conditions that would bind the country of habitual residence. To do this New Zealand needs to ratify the 1996 Hague Convention on Parental Responsibility and Protection of Children. “Why we haven’t signed it is a mystery to everybody,” says Alex.

If you are considering relocating with your children, or cannot reach agreement with your ex on where the children will live, get legal advice before taking action. Speak to Stuart Henderson, Nicole Dore or Taina Henderson in the family law team at Henderson Reeves on 09 281 3723.

You can watch Divorce Café on Youtube, and you can listen to the episode on Spotify, Apple or Google Podcasts, or by clicking here.