WHAT IS A 'REMOVAL' OR 'RETENTION'?
Removal or retention refers to the removal or retention out of the jurisdiction (outside) of the country of the child's habitual residence. Wrongful removal or retention within the borders of the state of the child's habitual residence falls outside the scope of the Convention.
- REMOVAL occurs when a child, who has previously been in the state of habitual residence, is taken away across the frontier of that state.
- RETENTION occurs where a child, who has previously been for a limited period of time outside the state of its habitual residence, is not returned on the expiry of that limited period or beyond the period agreed by the parties. A retention can also subsequently become 'wrongful' if, following the removal, the court of the child's habitual residence makes a valid order giving interim care and control to the applicant and for the return of the child which is not obeyed. (This is because the Convention should be construed purposively rather than semantically, and proper effect can only be given to the term 'retention' if it is interpreted as wide enough to include not only acts of physical restraint on the part of the retaining parent, but also judicial orders obtained on his invitation).
- 'Wrongful REMOVAL or RETENTION' are separate and mutually exclusive events; they both occur once and for all on a specific occasion.
- 'Wrongful removal' is not a continuing state of affairs, so a subsequent removal after a temporary return of the child to the state of habitual residence constitutes a new 'wrongful removal' within the meaning of Article 3. Accordingly, the time limits under the Convention run again from the date of the second removal.
The applicant must prove that removal or retention is wrongful, otherwise the application will fail.
- if the removal is contrary to an express court order;
- if the removal is prohibited according to the general law of the jurisdiction from where the child was taken
- retaining a child beyond the time allowed by a court or beyond the period agreed by the parties
- retaining a child before the expiry of the agreed period if the mother has announced her intention never to return the child; a retention becomes wrongful from the time the parent abandons the intention to honor the agreement.
But, the unilateral removal or retention of a child by an unmarried mother is not 'wrongful' if the unmarried father has no rights of custody and no court order prohibiting removal has been made. In Israel, however, the situation is different than in many other countries, and an unmarried father is still a child's natural guardian and may be able to bring Hague Convention proceedings.
Disobeying a court order requiring a child's return, made after an otherwise lawful removal, may also be a 'wrongful retention' for the purposes of the Convention.