The parent requesting a return order needs to prove that the country from which the child was allegedly abducted – and not the country where the child is located and the Hague Case held – is the country of habitual residence.

 Sometimes there will be a dispute about which country is the country of habitual residence and this can be the major issue in the Hague case  :  for example, if the whole family ‘moved’  ,in certain circumstances  the defending parent  may claim  that the child’s habitual residence has changed, to the country where the child is actually present  now - and that the Hague Convention does not apply, and there is no need to order a return. The parent requesting a return will claim that habitual residence was retained throughout the period.

The problem is that the convention itself does not define what ‘habitual residence’ means and there are many different approaches and interpretations about it among the contracting states, and even within them.

Some approaches focus on parental intentions about where the family should live and their last joint intention and examine relative ties to each country. Others are fact-based, from the child’s perspective. Some combine the two, but giving emphasis to facts, from the child’s perspective. 

Convention In Action