Operation of the Conventions:
Operation of the Conventions
This note, which has been prepared by the Lord Chancellor's International Child Abduction and Contact Unit (the ICACU), describes in outline the purpose and operation of two international conventions dealing with international child abduction to which the United Kingdom is a party. For information about abductions within the European Union ( other than Denmark) see information on Council Regulation (EU) 2201/2003 (Revised Brussels II). For information on non Convention countries see the general index on this site.
Both the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children have the same purpose; to deter international child abduction and to secure the return of children wrongfully removed or kept away from their home country. Although they are both founded on the well- recognised general principles that decisions about the care and welfare of children are best made in the country with which they have the closest connection, and that orders made in one state should be recognised and enforced in another, the two Conventions have different purposes.
The Hague Convention works on the principle of returning children who are wrongfully removed or retained away from their country of habitual residence. A wrongful removal or retention is defined as being in breach of rights of custody which are actually being exercised by a person, an institution or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention. Although under the Convention courts are required to order the return of a child wrongfully removed or retained away from its country of habitual residence, there are a number of grounds on which a return order can be refused. These grounds include the court being satisfied that returning the child would expose him to a grave risk of physical or psychological harm, or otherwise place the child in an intolerable situation, the child objecting to being returned and being old and mature enough to have his views taken into account. The court may also refuse to return a child if the applicant was not actually exercising rights of custody at the time of removal or subsequently consented to or acquiesced in the removal or retention. Since 1 March 2005 abductions within the European Union (other than Denmark) will be governed by the Hague Convention as modified by Council Regulation (EU) 2201/2003 (Revised Brussels II). For information on Revised Brussels II see the general index on this site.
The European Convention works on the principle of the mutual recognition and enforcement of orders made in the contracting state. Accordingly, there must be in existence an order of a court or other authority with the necessary jurisdiction in a Convention Country, which can be recognised and enforced in the receiving state.
In each contracting state there is an administrative body, known as the Central Authority, whose duty is to send and receive requests for the return of children or the enforcement of orders, to provide information about the law of their state, exchange information and generally further the objects of the Conventions.
The Convention countries all have different legal systems, and therefore although each country will apply the same Convention principle, their procedures may be very different. Countries have different ways of hearing cases and taking evidence. Some provide financial assistance to litigants, and others do not. In some countries it is the Central Authority that makes the application for the return order, in others the application is made by the aggrieved parent by local lawyers or, for example, the public prosecutor.
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Operation of the Revised Brussels II Regulation
Child Abduction and Enforcement of Parental Responsibility Orders within the European Union
Council Regulation (EC) No 2201/2003 of the European Parliament will have effect from 1 March 2005 (Revised Brussels II Regulation). The Revised Brussels II Regulation which is also known as Brussels II bis and Brussels IIa will be applied to cases of parental child abduction within the European Union and to the enforcement of orders for contact or access within the European Union.
From 1 March 2005 British and other European Union orders dealing with parental responsibility will be enforceable throughout the European Union with the exception of Denmark. The legislation which applies is Council Regulation (EC) No2201/2003 and is commonly referred to as Revised Brussels II, Brussels II(a) or Brussels II bis. If the order you are seeking to enforce was made in proceedings commenced after 1 March 2005 it will be directly enforceable throughout the European Union. If the order was made in proceedings commenced prior to that date it may be enforceable under the transitional provisions of the Regulation. Orders made in Scotland and Northern Ireland are also covered by the Regulation. The Revised Brussels II Regulation has also introduced a fairer and more streamlined process for dealing with parental abductions within Europe.
The Revised Brussels II Regulation does not apply to Denmark.
Abduction cases under the Revised Brussels II Regulation
The Revised Brussels II Regulation will apply to cases where a child has been abducted to or from a country within European Union, other than Denmark, from 1 March 2005. For cases concerning England and Wales you should contact the International Child Abduction and Contact Unit (formerly the Child Abduction Unit) which is the Central Authority for England and Wales. For cases involving Scotland and Northern Ireland you should contact the respective Central Authorities. See contact details
In England and Wales, applications under the Revised Brussels II Regulation will processed largely in the same way as applications under the Hague Convention.
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Incoming cases
Where a child has been abducted to England and Wales from a country within the European Union, other than Denmark, the Central Authority of the country concerned will forward an application to the Central Authority for England and Wales. The Central Authority for England and Wales will then forward the application to an experienced solicitor who will make all the necessary applications to the court.
All incoming cases will be dealt with in London by a High Court judge of Family Division in the same way as cases under the Hague Convention. The court will exercise control over the progress of the case, and the litigants so that time limits in the Revised Brussels II Regulation can be met.
Non means tested (free) legal aid will be available for incoming return applications under the Revised Brussels II Regulation.
Outgoing cases
Where a child has been abducted from England and Wales, the parent seeking a return will forward their application to the ICACU. Once the ICACU receives the application, it is sent off, with translations if necessary, to the Central Authority of the country to which the child has been abducted. Thereafter, the ICACU will monitor the progress of the case, liase with the Central Authority of the requested state and the applicant, give advice about English law and do all that it can to help bring the case to a successful conclusion.
In order to come under the Revised Brussels II Regulation the case must meet the same criteria as for the Hague Convention. That is :
the child must be under 16
the child must have been habitually resident in a Hague Convention Country prior to the abduction
the applicant must have and have been exercising rights of custody in relation to the child
the abduction must have taken place after the Hague Convention came into force between the United Kingdom and the country to which the child has been taken
the abduction must have been from or to a country within the European Union other than Denmark and the application for return must be made after 1 March 2005
Costs
The cost of an application for the return of a child is often a matter of concern to parents. In most countries no payment for legal proceedings is required for outgoing applications made under the Hague Convention and this will remain the case under the Revised Brussels II Regulation. The International Child Abduction and Contact Unit will be able to give you information regarding legal costs in specific countries.
Non means tested (free) legal aid is available to meet the applicant's legal costs for incoming applications for the return of a child from the England and Wales.
Expenses incurred when returning the child are not covered but applicants may request that an order for travel costs be made against the person who has removed/retained the child. The court will consider the request but is not bound to make such an order.
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Contact with your children within the European Union
From 1 March 2005 orders dealing with parental responsibility including contact with children made in the United Kingdom and any other European Union Country other than Denmark, will be enforceable throughout the European Union with the exception of Denmark. The legislation which applies is Council Regulation (EC) No2201/2003 and is commonly referred to as Revised Brussels II. If the order you are seeking to enforce was made in proceedings commenced after 1 March 2005 it will be directly enforceable throughout the European Union. If the order was made in proceedings commenced prior to that date it may be enforceable under the transitional provisions of the Revised Brussels II Regulation. Orders made in Scotland and Northern Ireland are also covered by the Revised Brussels II Regulation. Orders made in the Crown Dependencies and the Overseas Dependant Territories are not covered by the Revised Brussels II Regulation.
You have existing contact orders
If the orders were made in proceedings commenced after 1 March 2005 you will be able to enforce those orders in the European Union country in which you child is living (other than Denmark) under the Revised Brussels II Regulation. You will need to obtain a certificate from the court which issued the orders. You should contact your solicitor or the Central Authority. If you are seeking to enforce orders in Denmark you may be able to enforce them under the European Convention.
If the orders were made in proceedings commenced prior to 1 March 2005 the orders may still be enforceable under the transitional provisions of the Revised Brussels II Regulation. You should contact your solicitor or the relevant Central Authority to discuss the circumstances.
If the orders are not enforceable under the Revised Brussels II Regulation, you may be able to register the orders in the country in which your child is living under the European Convention.
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You do not have existing contact orders
You may be able to make an application under article 21 of the Hague Convention if your child is located in a Hague convention country. If not you will need to establish contact orders in the country in which your child is living. You should seek advice from the relevant Central Authority.
Procedure
Cases in England and Wales which come under either the Hague Convention, the Revised Brussels II Regulation or the European Convention will be handled by the International Child Abduction and Contact Unit. If the Unit is unable to secure voluntary compliance with the orders the application will be forwarded to a solicitors with experience in these matters. The solicitors will then take instructions, secure legal aid if you qualify and commence any necessary proceedings.
If your case does not come under the Conventions or the Regulation you will need to secure the services of a lawyer in the country in which your child is living. The Foreign and Commonwealth Office will be able to offer assistance in locating a solicitor and may be able to provide similar assistance to that provided in the case of abduction to a non Hague Convention country. The contact details of the Foreign and Commonwealth Office are set out below.
Foreign & Commonwealth Office
Consular Division
Old Admiralty Building
London, SW1A 2PA
Tel: 020 7008 0200
Website:
http://www.fco.gov.uk/