The Hague Convention on the Civil Aspects of International Child Abduction is a treaty signed by over 100 countries. It was created to ensure that all children who have been wrongfully taken or retained outside their habitual country of residence are returned safely.

It applies to all children under 16 who are brought to a country that is signatory to the convention without (or against) one parent’s consent. The Convention is solely concerned with whether the removal of the child was lawful, but crucially, proving where their habitual country of residence is can be difficult.

In one case that appeared before the Supreme Court of Canada, a mother living in Germany returned to Canada to get her children a Canadian education. The father consented for their departure for a period of 16 months, but later revoked his consent fearing that the mother did not intend to return the children to Germany. She did not.

In this case, it was unclear whether the children’s habitual country of residence should be considered Canada or Germany. The courts weighed the children’s links to both countries, and the circumstances of their move.

Interestingly, after the Canadian Supreme Court ruled that Germany was the children’s habitual country of residence and ordered their return, the mother launched a challenge in a German court. The following year, that court ruled to grant the mother sole custody and allowed her to return with them to Canada.

There are also other factors that may affect Hague Convention ruling:

  • Would the child’s return to their habitual country of residence pose a risk to the child (i.e. would the child be subject to physical or mental harm)?
  • Does the child object to being returned, and are they of an age and maturity level that warrants the court’s consideration?
  • Has more than one year has passed since the wrongful removal of the child?
  • Has the party seeking the return of the child consented to the removal or otherwise acquiesced to the child’s removal?

In cases like these, it’s important to work with experienced family law experts. Contact Blackburn Lawyers today to find out how we can help you.