Practical aspects of the application of the Hague Convention on Child Abduction before the English courts
The proceedings and the presented evidence is to show whether the courts have jurisdiction at all, answering the following questions:
1. whether the minor is below the age of 16;
2. where his habitual residence was as of the time of the removal
When examining the habitual residence – the main factor is the degree of integration in social environment of the child.
The issue of welfare is not being dealt with within those proceedings.
Once the jurisdiction is established, it is only then being examined further:
3. whether the requesting parent has parental rights within the meaning of art. 3
And only then, upon fulfilling the first 3 criteria, whether the removal was wrongful.
There is strong encouragement for mediation – before the judgement is being made .
When the application is contested – the objections under the HC are examined too. In case of art. 13b of the Convention, e.g. the exception of harm – allegations of domestic violence and child abuse then – looking at the evidence – the court will assume the risk at its highest – but when the possible protective measures are strong in the country where the child will be returned, then the child will be returned anyway and the objection will be unsuccessful.
The mistake most commonly made by the parties is to treat the Hague Convention case as their final battle, which is not appropriate. The judgement to return the child has the effect, that the court of the country of return will be hearing the case on merits as the one being more suitable to judge the case and make the judgement than the one in the country, where the child is being abducted to.