The Hague Convention and Transnational Custody Disputes

Abstract

Adopted on October 24, 1980, the Hague Convention on the Civil Aspects of International Child Abduction was designed to address the problem of international parental child abduction. More than 90 States are contracting parties to the Convention, making it one of the most important and successful family law instruments completed under the auspices of the Hague Convention on private international law. The Convention places a premium on prompt return in circumstances where a child was removed from one jurisdiction by a parent – the jurisdiction of “habitual residence” – in breach of the custody rights of the “left behind” parent. Once returned, custody can be determined by the relevant authorities in the jurisdiction of habitual residence. Habitual residence is central to the operation of the Convention, since the return mechanism in art. Twelve will only be triggered when a child is wrongfully removed from their State of habitual residence. The Supreme Court of Canada applies the “hybrid approach” to determining habitual residence, which treats the circumstances of the children and the intentions of the parties as factors to be considered in achieving a just result which fulfills the objectives of the Hague Convention. Under the hybrid approach, the court has the task of determining the focal point of the child's life immediately prior to the removal or retention. The child's perspective is thereby put squarely at the centre of Convention applications. Canada's approach represents an evolution from the formalism of early cases to a recognition that the best interests of children generally is not a substitute for the best interests of the particular children before the court.