UK Law and Practice Contributed by: Emma Post and Nicki Beale, NE Family Law
Statistical Study of Applications Made in 2021 Under the Hague Convention (HCCH, October 2023) As previously discussed, left-behind parents are enti - tled to non-means or merits-tested legal aid if they apply for a return from England and Wales via the ICACU. If the application is not made via the ICACU and solicitors are independently instructed, the costs will vary depending on the firm. The court in England and Wales will adhere to its obli - gations under the Hague Convention, and will gener - ally strive to return a child once the alleged abduc - tion or retention has been proven. As to the defences available, these would be considered on a case-by- case basis and are very fact-specific, but the burden remains on the respondent to establish an exception (which has a high bar). As regards the return of the child to a non-Hague Convention country, the procedure is as set out in Chapter V, Part 12 of the FPR 2010 for an application to the High Court, invoking the court’s inherent juris - diction (wardship proceedings). Form C66 is required. The welfare of the child will be the court’s paramount consideration. A summary return is likely on the basis that it would be appropriate and in line with the child’s welfare for their state of habitual residence to deter - mine welfare decisions. However, this will depend on the facts of each case. 3.4 Non-Hague Convention Countries The UK is a signatory to the Hague Convention, which is enshrined in domestic legislation through the Child Abduction Act 1984 and Chapter VI, Part 12 of the FPR 2010; therefore, this topic does not apply.
per Re J (abduction: rights of custody) [2005] UKHL 42. Removal Regarding Non-Hague Convention Signatory Countries The left-behind parent would need to consider wheth - er to make an application to the High Court for: • declaration of wrongful removal or retention; • a return order; and • other orders, such as wardship. The court will exercise its full welfare jurisdiction (Sec - tion 1 Children Act 1989). Specialist advice would need to be obtained in the country to which the child has been taken as to the enforcement of English orders or remedies within that jurisdiction. 3.3 Hague Convention on the Civil Aspects of International Child Abduction The UK is a signatory of the Hague Convention. If a child is removed from a Hague Convention country and is brought or is inbound to England and Wales, the left-behind parent can make an application for their return. The proceedings are summary in nature and must be concluded within six weeks.
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