The Hague Child Abduction Convention and Re-relocation Disputes

Abstract

Abstract It is widely recognized that the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Convention') is invoked in types of cases which were not envisioned by the drafters and which might not naturally be classified as abduction cases. This article provides detailed consideration of one such type of case, which will be referred to as "re-relocation disputes." Such disputes arise when, following a temporary/ conditional move or a recent permanent move to a 'new' country, one parent wishes to return to the 'base' country', while the other insists on staying in the new country. The purpose of this article is to consider the impact and policy implications of using the Convention's mandatory return mechanism to resolve these disputes. Reframing these situations as re-relocation disputes facilitates analysis of the phenomenon from a broader perspective, including consideration of tools designed to create certainty and to produce result consistent with policy objectives. This discussion is particularly timely in the light of global jurisprudential developments over the last few years in relation to the test for determining the child's habitual residence and the implications of the recent decision of the English Court of Appeal in the case of Re NY[2019]UKSC 49 for consensual removals or retentions.