What difference does the age of the child make when it comes to The Hague Convention, and a request to return the child to the country where the child has it’s habitual residence?
Article 4 of the Convention
First of all, article 4 of the Convention states: the convention ceases to apply when the child reaches the age of 16. Even if the procedure has started before the child turns 16, there will not be a return decision.
Resistance of the child
Secondly, the age of the child matters when the child shows resistance against a possible return. As you know, the request for the return of the child, can be denied by the court, if:
– The child lives in this country for over one year and has put down roots in that country
– The parent who is requesting the return did not have custody over the child, of he or she had consented with the relocation of the child
– There is grave risk that the child’s return, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation
– if the court finds that the child is opposed to his return and that the child is of an age and maturity, which justifies having his opinion taken into account.
Preference?
This last sentence does not mean the child gets to choose. Having a preference for one of the countries, does not necessarily mean that the child is resisting a possible return. Also, the court may try to interpretate what the child is saying, rather than taking it literally.
Guardian ad litem
When will a court think a child is of an age and maturity which justifies that his opinion is taking into account? The court can ask for the advice of an psychologist. This is called a guardian ad litem. He or she is appointed by the court to investigate what solutions would be in the best interests of a child. The guardian ad litem can also have an opinion about the maturity of the child. The guardian can be asked to advise on whether or not the child was able to form its own opinion or not. Living in another country with only one of the parents for a while, during a court procedure where the parents have contradicting interests, can cause a child to choose a side. This can be the result of isolation and feeling dependent on that one parent.
Child interview
The Convention does not demand the court to talk to the minor. However, EU countries (exept Denmark) are bound by the Brussel II bis regulation. Article 11 of his regulation states that in an abduction court procedure, the child must be given the opportunity to be heard.
In the Netherland courts normally invite children of the age of 12 and above to give their opinion, in a letter of through a short child interview. In abduction procedures, the limit is lowered to 6 years and above. Parents can specifically ask the court to invite their child, if it is under 6. In other countries children are invited at younger ages.
Grave risk exception
When the court has to decide whether the return of the child, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the age is also relevant. The mere fact that the return of a child will likely separate the child from the abducting parent does not mean that the request for return must be rejected.
Also, the mere fact that the child is very young will not lead to that conclusion. There must be other relevant circumstances, to conclude that there is a grave risk as mentioned before. One relevant fact can be that the child is in the attachment phase with the parent from whom it may be separated, for example due to the lack of a visa or residence permit
Habitual residence of an infant
The court can decide that the child must be returned to the country where it has his habitual residence. This is the place where, in fact, is the center of his life. Normally, the court will look at things such as school, activities, medical treatment, social ties etcetera. For an infant, a different approach is necessary.
Fortunately, there are a lot of prior court decisions about determining the habitual residence of an infant. If the child was born in a certain country, it can be relevant whether the parents had at first intended to relocate to that country, but it is also relevant how much time the infant has spent in that country until the court decision, whether there are cultural ties to that country or whether the infant has that countries nationality.
Conclusion
Yes, the age of a child is very relevant in a child abduction procedure. And when the child is an infant, it is even more important to file a request for return as soon as possible.
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