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Residence Orders: Hague Convention (On The Civil Aspects of International Child Abduction)
With UK residents making over 40 million visits abroad in one year and over 10 million British nationals living overseas, the continuing increase in international child custody disputes is not surprising. Matters of this nature will always be agonisingly difficult for the parents as well as the children involved.
Before the Children’s Act of 1989, few courts have given importance to children having continuous contact with the parent who was forced to leave home due to marital separation. There are instances where a parent had to go to prison for obstructing contact or resorting to parental abduction. The gravity of the negative effect of circumstances such as these on the children and their relationship with the other parent cannot be underestimated.
The residence order replaces the custody order and offers flexibility in accommodating various shared case arrangements. It ensures that both parents know and feel that they have a continuing role to play in the lives of their children despite the separation. A shared residence order is more advantageous to all concerned, as it does not deprive any parent or the children the right to spend time together.
There is no intention to take away parental responsibility from any parent by granting a residence order in favour of the other. In fact, it can be made in favour of more than one person at the same time in spite of them not living together. It can just specify the periods the child will spend on each household concerned.
The Hague Convention
The Hague Convention is a treaty that was concluded with the firm conviction that the children's interest is of paramount importance in matters affecting their custody. It aims to protect the children internationally from the harmful effects of wrongful removal and retention in any contracting state, ensure their prompt return to the state of habitual residence and to secure protection for rights of access. The Hague Convention seeks to lessen international abductions by judicial remedies.
The Convention is applicable to any child who is a habitual resident in a contracting state immediately before custody or access rights have been breached. It however, ceases to apply when the child reaches the age of 16 years.
All contracting states shall designate their own Central Authority, which shall cooperate with each other in achieving the objectives of the Convention. They are to take all appropriate actions towards the main aim of ensuring the safe and speedy return of children wrongfully removed or retained. The Central Authority for England and Wales is the Child Abduction Unit.
The United Kingdom is part of two international conventions concerning the return of a child who has been abducted. One is the above mentioned Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children.
Either one or both conventions are in force between the United Kingdom and the countries of: Argentina, Australia, Austria, Bahamas, Belgium, Belize, Bosnia Herzegovina, Burkina Faso Israel; Canada, Chile, Croatia, Cyprus, Denmark, Ecuador, Finland, France, Germany, Greece, Honduras, Hungary, Italy, Luxembourg, Macedonia, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Poland Portugal, Republic of Ireland, Romania, St. Kitts and Nevis, Slovenia, Spain, Sweden, Switzerland, United States of America and Zimbabwe.
It is a criminal offense in England and Wales under the Child Abduction Act of 1984 for a parent or guardian of a child, or any person who has a custody/residence order relating to the child to take or send the child out of the United Kingdom without the consent of any other person or persons having rights to the child. There are several possible scenarios in child abduction.
When your child has been taken to a convention country, you should contact the Child Abduction Unit. The questionnaire that shall be sent to you should be accomplished and sent back with photographs of the missing child and the person who has taken the child. Any relevant information explaining the circumstances would be of great help in locating the child. However, the case must fall within the requirements of the convention.
If your child has been taken to a non-convention country, the Foreign and Commonwealth Offices will be able to advise you on what to do. Establish as soon as possible what your parental rights are and the childcare and control practices prevailing in the country concerned. The Consular Division of the Foreign and Commonwealth Offices can provide a list of local lawyers but can neither give legal advice nor act as legal representative.
If you do not know where your child has been taken, it is best to alert the local police station so a Port Alert can be initiated to circulate your child's name to all UK points of departure. After which, you should also contact the Lord Chancellor's Department Child Abduction Unit. If your child has been abducted but is still within the United Kingdom, you should know that court orders made in one part of UK is recognised and enforced in all parts.
If you feel that the threat of removal is real and imminent, you must keep the following information ready:
- the child's full name, place and date of birth, passport number, date and place of issue and physical description
- the full name, aliases, place and date of birth, passport details, occupation, departure details and ties to foreign countries of the person who has taken the child
- the copies of all pertinent documents such as agreements and court orders, child's birth certificate, photographs of the child and the person who has taken the child.
Always in circumstances like these, one or both parents involved in the dispute actually believe they have more right than the other over the child. But almost always, it is the children who suffer, while the two persons who supposedly care so much for them eventually end up hurting them instead.