There are very limited defences to a Hague Convention application and they are construed narrowly by the English Court. They can be summarised as follows:
- Consent– Article 13 (a) – it is possible to defend a Hague Convention application if you are able to show that the left behind parent consented to the child’s removal to or retention in another country.
- Acquiescence– Article 13 (a) – it is possible to defend a Hague Convention application if you are able to show that the left behind parent subsequently acquiesced in the removal or retention – that is to say that the Applicant indicated by his/her words and/or actions after the wrongful event of that he/she did not seek to secure the child’s summary return. Acquiescence in Article 13 means looking at the subjective state of mind of the wronged parent and asking has he/she in fact consented to the continued presence of the child in the jurisdiction to which they have been abducted.
- Child’s objections– Article 13 – it is possible to seek to defend a Hague Convention application if the subject child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the subject child’s views. For this defence to be established, it is important for the Court to satisfy itself that the child has not been influenced by the abducting parent about their views.
- Grave Risk of Harm/Intolerability – Article 13 (b)– it is possible to raise a defence to a Hague Convention application if you are able to demonstrate that if you were to return a child to its state of habitual residence there would be a grave risk that the child would be exposed to physical or psychological harm or the child would otherwise be placed in an intolerable situation.
- Settlement– once a child has been removed to or been retained in another contracting state for more than 12 months, it is possible to argue that the child has become settled within the new state and therefore should not be returned. This defence can only be used if the child has been in the country in which they were removed or retained, for more than 12 months before the Hague Convention proceedings were issued. This defence cannot be used if the proceedings are issued within 12 months of the abduction.
The most commonly raised defence is Article 13(b)/intolerability defence but in the vast majority of cases the defence can be ameliorated by the left behind parent providing what is classed as a “safe haven” return package (protective measures). I.e. most of the things that parents consider intolerable about returning to the country of habitual residence can be ameliorated with the provision of appropriate housing, funding and other practical assistance by the left behind parent or contracting state until such time as things can be properly considered by the Courts of the child’s habitual residence.
If one of the above is satisfied, the court does not need to return a child to the home country but can do.