The Hague Convention– The Convention on the Civil Aspects of International Child Abduction, drawn up in The Hague on October 25, 1980.
The Hague Convention imposes an obligation on the court to order the immediate return of a child only in cases of wrongful abduction or retention, provided certain additional conditions are met. Consequently, the concepts of wrongful abduction and wrongful retention of a child, as well as the concepts of habitual residence of the child, rights of custody, and rights of access, play a crucial role in the Convention.
According to Article 3, sentence 1, of the Convention, the conditions for wrongful abduction or retention of a child are as follows:
1) A breach of rights of custody granted to a specific person, institution, or another body, whether exercised jointly or individually, under the laws of the country in which the child was habitually resident immediately before the abduction or retention, and
2) The effective exercise of such rights at the time of the abduction or retention, or the determination that such rights would have been exercised if the abduction or retention had not occurred.
Thus, the wrongful nature of abduction or retention is determined by two conditions: legal (a violation of rights of custody) and factual (the actual exercise of custody rights at the time of the child's abduction or retention). Both of these conditions must be present for the abduction or retention to be considered wrongful. Any other movement or retention of the child that does not meet either of these conditions cannot be treated as wrongful. Therefore, the court will not accept a petition from an individual who did not hold rights of custody, particularly the right to determine the child's place of residence, or who held such rights but did not actually exercise them. In practice, this requirement obligates the petitioner to provide all evidence that they exercised actual care over the child. The petitioner must also demonstrate, through evidence, that their custody rights were violated and that these rights were effectively exercised at the time of the child's removal or retention.
The court evaluates whether the petitioner held custody rights by analyzing the laws of the country where the child had habitual residence before the wrongful abduction or retention, regardless of whether the custody rights of the parent requesting the child's return arise from a court decision or a legally binding agreement.
Determining whether the petitioner held custody rights will not always be a straightforward task. It is possible that a person who holds "rights of custody" does not have the right to physical care of the child. In practice, an important factor, especially within the jurisdiction of common law systems, is the so-called *ne exeat* orders, which prohibit the removal of a child from the country until the conditions set out in the order are fulfilled. Such orders provide protection for a parent who has not been granted custody of the child but has been granted visitation rights and the ability to exercise these rights by prohibiting the child from leaving the country where they reside. It is accepted that removing a child from the country in violation of a *ne exeat* order constitutes a wrongful act. International case law largely agrees that visitation rights secured by a right of objection to the child's removal abroad through a *ne exeat* order qualify as "rights of custody" under Article 5(a) of the Convention. While the application of this clause affects the person with sole custody of the child, it protects the child's right and the right of the other parent to maintain their relationship and contact.
It is also worth noting that the provisions of the Convention explicitly refer to the right of custody according to the law of the child's habitual residence. In cases of doubt as to whether the applicant had custody rights over the child, the court may exercise the option provided for in Article 15 and request the applicant to submit a decision or statement from the authorities of the state of the child’s habitual residence, confirming that the abduction or retention was wrongful within the meaning of Article 3, i.e., that it violated custody rights. This matter is further discussed in the chapter dedicated to the procedural law provisions of the Convention.
A wrongful abduction of a child occurs when the child is moved from the territory of one contracting state to the territory of another contracting state without the consent of the person who has custody rights over the child. Wrongful retention occurs when a child is temporarily present in another state without violating anyone's custody rights (e.g., based on a court order regulating the right of visitation of a parent residing in the other state or an agreement between the parents), but is then retained in that state and does not return to the country of previous residence after the period stipulated in the court order or agreement has expired. Therefore, it is considered that wrongful abduction occurs at the moment when the child crosses the border of the state of habitual residence without the required consent of the person holding custody rights. In contrast, wrongful retention occurs only after the period during which the child was permitted to stay in another state has expired.
In a case initiated by a parent's application for the return of a child, the court examines whether there has been a cross-border movement or retention of the child, and if so, when this occurred; where (in which state) the child had habitual residence immediately before the movement or retention; and whether that state was a contracting party to the Convention at the time of the events in question. The court also examines whether the Hague Convention on the Civil Aspects of International Child Abduction was in force between the state of the child’s habitual residence and the state to which the child was moved or in which the child was retained at the time of the child’s movement or retention; whether the movement or retention was wrongful, meaning whether it violated the applicant’s custody rights, which were being exercised at the time of the movement or retention; whether the wrongful abduction or retention occurred within the meaning of the Convention; and whether the child is under 16 years of age.
If it can be demonstrated, by all available evidence, that a wrongful abduction or retention of the child has occurred, and the court determines that the child remains within the territory of the state where the proceedings are taking place and is under 16 years of age at the time of the judgment, the court will, in principle, order the immediate return of the child. This is based on the assumption that the prompt return of the child to the place of habitual residence prior to the abduction serves the child’s best interests. The child returns to the environment from which they were removed as a result of the unilateral actions of the abducting or retaining person.
The court should order the return of the child even if the application is filed with the court after one year has passed since the wrongful abduction or retention, unless it is established that the child has become settled in the new environment. In other words, the court may refuse to order the return of the child in the event of the one-year deadline being exceeded only if it is determined that the child has adapted to their new environment. This period is calculated from the date of the abduction or retention until the date the application is submitted to the court, not to the central authority.