- in breach of 'rights of custody' attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention'.
To make an application under the Hague Convention, it is not necessary for the applicant to have a court order in his favour.
Defences: under Articles 12 and 13 there are a number of exceptions or defences to an automatic return. The abducting parent has the burden of proving that one of the following defences should apply. The courts of most Western countries do not usually easily allow these defences to succeed in preventing the return of the child. This is because they in effect negate the main purpose of the Convention.
- LATE APPLICATION / CHILD SETTLED IN NEW ENVIRONMENT –Where Hague Convention proceedings are started more than one year after the wrongful removal or retention a return, the court has a discretion under Article 12 not to order the child's return if it is proved that he " is now settled in its new environment'.
'Settled' means emotionally and psychologically, and physically (in the sense of being established in a community). 'New environment' means place, home, school, people, friends, activities and opportunities, but not the relationship with the abducting parent.
- NON-EXERCISE OF CUSTODY RIGHTS - By Article 13(a) the court may refuse to order the child's return if the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention. In practice it is only in the most extreme circumstances that a court would rule that a parent is not exercising his custody rights.
- CONSENT OR ACQUIESCENCE - The court may refuse to order the child's return if it is shown that the person, institution or other body having the care of the person of the child has consented to or subsequently acquiesced in the removal or retention.
- CONSENT - Whether an alleged consent to the child's removal is valid or not depends on the circumstances of each case. Consent will not be treated as valid if it has been obtained through a calculated and deliberate fraud by the abducting parent. Consent cannot be passive. It need not be in writing because parents do not necessarily put their agreements and understandings about their children into writing even at the time of marital breakdown. But the consent must be real positive and unequivocal usually 'express' but it could be implied from conduct. Once consent is given (and acted upon) it cannot later be withdrawn by the parent who gave it after he has changed his mind.
- ACQUIESCENCE (agreeing after the act) can be active or passive. Whether the wronged parent has 'acquiesced' in the removal or retention of his child is a question of fact which depends on his actual state of mind and his subjective intention. The issue is not the other parent's perception of the applicant's conduct but whether the applicant acquiesced in fact.
But where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the automatic return of the child, then the wronged parent will be held to have acquiesced.
One of the difficult issues here is where the wronged parent has delayed in making a Hague Convention application. Because the question is the subjective intention of the wronged parent, delay in making an application because of mistaken legal advice seems to negate what would otherwise be acquiescence, and acquiescence is unlikely to be proved if the applicant does not know of the act or does not know that it is wrongful.
- GRAVE RISK OF HARM. By Article 13(b) the court may refuse to order the child's return if it is proved that there is “a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Again the burden of proof is on the abducting parent. The risk must be 'grave', or extreme. And the evidence brought must be "clear and convincing". This defence is often relied on by abducting parents, but in the courts of most western countries at least, often fails. Here, one is talking about a risk of physical and/or sexual and/or emotional abuse, to the child, not the parent. However, though there is a grey area where a child suffers indirectly from abuse against the removing parent, courts are usually very clear in requiring evidence of risk of direct abuse against the child himself, and not the 'removing' parent. This is because it is presumed that a parent who is violent towards the other parent may not necessarily be violent against their mutual child, and because there are ways of protecting the removing parent from alleged violence even if the child is returned.
Article 12 provides that where less than one year has passed since child was wrongfully removed or retained, and proceedings started, then the 'the authority shall order the return of the child forthwith'. Even where more than one year has passed, the authority 'shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment'.