Session 10.1 The origin of Hague 1980 Child Abduction Convention, its continuing relevance and the added value of the 1996 Child Protection Convention
Tracks
Track 1: Room LG19
| Wednesday, July 30, 2025 |
| 12:05 PM - 1:05 PM |
| LG19 - The Arthur Goodhart Lecture Theatre |
Overview
Individual paper
Chair: The Honourable Diana Bryant AO KC, Chair of the World Congress on Family Law & Children’s Rights
Philippe Lortie, The Hague Conference on Private International Law, The Netherlands
Speaker
The Honourable Diana Bryant
Chair
World Congress On Family Law And Children's Rights
Chair: The origin of the Hague 1980 Child Abduction Convention and its continuing relevance
Biography
Former Chief Justice of the Family Court of Australia, Chair of the World Congress of Family Law & Children’s Rights
Mr Philippe Lortie
First Secretary
Hague Conference on Private International Law
The origin of Hague 1980 Child Abduction Convention, its continuing relevance and the added value of the 1996 Child Protection Convention
12:05 PM - 1:05 PMAbstract
In the late 1970’s, at the time of development of the Hague 1980 Child Abduction Convention, many States were implementing important family law reforms. Sole custody rights were giving way to joint custody rights and the child was becoming a subject of the law, instead of an object of the law, having, for example, the right to have contact with both parents and the right to express their views on decisions concerning them, subject to their age and maturity. It was also a time when the cross border movement of persons was made easier by less expensive and more frequent modes of transportation and fewer visa requirements.
This ease of cross border movement contributed to more frequent incidents of international child abduction (i.e., the cross border wrongful removal or retention of a child), in violation of custody rights. Such abductions, even at that time, were recognised as having a negative effect on children and being contrary to their best interests. In their study of the issue, both the Hague Conference on Private International Law (HCCH) and the International Social Service (ISS) had identified five types of abduction scenarios. The most common scenario, in the case of a divorce or legal separation, consisted of the non-custodial parent, usually the father, removing a child as a result of his frustration with being denied access to the child. Another scenario was the mother removing the child in the event of a problematic relationship between the parents and / or protecting the child from abuse, mistreatment or neglect. Both scenarios are still prevalent today but in different proportions.
By wrongfully removing or retaining a child across borders, in contradiction with ex lege or court based custody rights, i.e., by taking the law in their own hands, a parent is bringing about a change of factual circumstances affecting the contact of the child with the other parent and, over time, once a new habitual residence is established, to seize a court to obtain a conflicting custody decision (forum shopping). Back in the 1970’s, there were no swift legal solutions to the problem and the Hague 1961 Protection of Infants Conventions was inadequate as it could result in conflicting decisions and it lacked a cooperation system based on Central Authorities. As a result, the HCCH developed the 1980 Convention, which prevails over the 1961 Convention (Art. 34), to prevent and address child abduction. It does so by providing for the prompt return of the child to their State of habitual residence, the only jurisdiction which is best placed to decide on the merits of the child custody issue. This is helped by the fact that the competent authority seized of the return application is barred from deciding on the merits of the custody issue (Art. 16), that the return is based on the principle of status quo ante (Art. 19) and the abduction is characterised as being “wrongful”, a deliberately neutral term to avoid connotations of civil or criminal liability. The idea is to invite the parties to do the right thing i.e., go back to the State of habitual residence, as if the abduction never happened, and agree on issues of custody and access or go to court. The Convention provides exceptions to the return, if doing so would be contrary to the best interests of the child, to be interpreted in a restrictive way, if the Convention is not to become a dead letter.
In the light of the UN 1989 Convention on the Rights of the Child (Arts 3, 9, 10, 11, 12 and 35), the 1980 Convention is as relevant today as it was when it was drafted. Furthermore, the HCCH 1996 Convention underpins the principle that only one jurisdiction can decide on a specific issue at a given time i.e., the State of habitual residence of the child, thus preventing conflicting decisions. The 1996 Convention can also facilitate the return of the child and the taking parent to the State of habitual residence by supporting them with relevant (urgent) protective measures. The 1996 Convention also facilitates contact between the child and their parent across borders and the implementation of relocation agreements and / court decisions. However, there is still room for improvement to protect the taking parent upon return.
* The views expressed by the author may not reflect the official position of the HCCH.
This ease of cross border movement contributed to more frequent incidents of international child abduction (i.e., the cross border wrongful removal or retention of a child), in violation of custody rights. Such abductions, even at that time, were recognised as having a negative effect on children and being contrary to their best interests. In their study of the issue, both the Hague Conference on Private International Law (HCCH) and the International Social Service (ISS) had identified five types of abduction scenarios. The most common scenario, in the case of a divorce or legal separation, consisted of the non-custodial parent, usually the father, removing a child as a result of his frustration with being denied access to the child. Another scenario was the mother removing the child in the event of a problematic relationship between the parents and / or protecting the child from abuse, mistreatment or neglect. Both scenarios are still prevalent today but in different proportions.
By wrongfully removing or retaining a child across borders, in contradiction with ex lege or court based custody rights, i.e., by taking the law in their own hands, a parent is bringing about a change of factual circumstances affecting the contact of the child with the other parent and, over time, once a new habitual residence is established, to seize a court to obtain a conflicting custody decision (forum shopping). Back in the 1970’s, there were no swift legal solutions to the problem and the Hague 1961 Protection of Infants Conventions was inadequate as it could result in conflicting decisions and it lacked a cooperation system based on Central Authorities. As a result, the HCCH developed the 1980 Convention, which prevails over the 1961 Convention (Art. 34), to prevent and address child abduction. It does so by providing for the prompt return of the child to their State of habitual residence, the only jurisdiction which is best placed to decide on the merits of the child custody issue. This is helped by the fact that the competent authority seized of the return application is barred from deciding on the merits of the custody issue (Art. 16), that the return is based on the principle of status quo ante (Art. 19) and the abduction is characterised as being “wrongful”, a deliberately neutral term to avoid connotations of civil or criminal liability. The idea is to invite the parties to do the right thing i.e., go back to the State of habitual residence, as if the abduction never happened, and agree on issues of custody and access or go to court. The Convention provides exceptions to the return, if doing so would be contrary to the best interests of the child, to be interpreted in a restrictive way, if the Convention is not to become a dead letter.
In the light of the UN 1989 Convention on the Rights of the Child (Arts 3, 9, 10, 11, 12 and 35), the 1980 Convention is as relevant today as it was when it was drafted. Furthermore, the HCCH 1996 Convention underpins the principle that only one jurisdiction can decide on a specific issue at a given time i.e., the State of habitual residence of the child, thus preventing conflicting decisions. The 1996 Convention can also facilitate the return of the child and the taking parent to the State of habitual residence by supporting them with relevant (urgent) protective measures. The 1996 Convention also facilitates contact between the child and their parent across borders and the implementation of relocation agreements and / court decisions. However, there is still room for improvement to protect the taking parent upon return.
* The views expressed by the author may not reflect the official position of the HCCH.
Biography
Philippe Lortie joined the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in September 2001 as First Secretary. He is co-responsible for the International Family & Child Protection Law Division which includes the 1980 Child Abduction, 1996 Child Protection, 2000 Protection of Adults and 2007 Child Support Conventions and the 2007 Protocol on the Law Applicable to Maintenance Obligations. He is also responsible for the International Hague Network of Judges, the Judges’ Newsletter and e-Justice tools supporting HCCH Conventions such as e-Country Profiles, INCADAT and iSupport.
Before joining the HCCH, from 1991 to 2001 Philippe Lortie was Legal Counsel at the Department of Justice of Canada. In that capacity, he acted as Head of Canadian delegations to the HCCH, Unidroit and UNCITRAL. During that period, Philippe Lortie was Project Co-ordinator and Rapporteur for several Uniform Model law. Philippe Lortie is a member of the Québec Bar since 1991 and holds degrees in Civil Law (LL.L.) and Common Law (LL.B.). He also holds an LL.M. in international law.
