I wrote here yesterday about the recent Hague Convention on Child Abduction case U-B (A Child). In that post I explained how Lord Justice Davis expressed concern that the case could give rise to the perception that a parent could wilfully disregard a prior agreement as to where a child should live and get away with it.
This led me to wondering just how effective the Hague Convention is at securing the return of children from here to their home country, and just what the chances were of successfully resisting an application under the Convention.
I have been searching for statistics regarding applications made under the Convention, and the most recent I can find are for 2008. They may not be the most up to date (I suspect that the number of applications has increased considerably since then), but they do provide some interesting information.
The first figure of interest is that the percentage of cases in which the English courts ordered a return of a child to another country was 47 per cent. This may not sound that high, but there are three points to note:
Firstly, the global percentage of cases where a return was ordered was just 27 per cent. Accordingly, it could be said that a parent abducting their child to this country was far less likely to ‘get away with it’ than if they took their child to most other countries. (Obviously there is a lot more to many cases than simply whether or not an abducting parent ‘gets away with it’, but I use that term here as I am discussing abductions simply in the context of whether or not a return takes place.)
The second point to note is that the percentage of cases where the child was returned was actually much higher than 47 per cent. In 13 per cent of cases the abducting parent voluntarily returns the child. Further, the statistics only show applications for return that were made. Many cases are resolved without an application actually being made, for example where the threat of an application is sufficient to persuade the abducting parent to return the child. Thus, the percentage of cases in which the abducting parent does ‘get away with it’ will be considerably less than 40 per cent of the total number of child abductions that occur.
Thirdly, and without getting bogged down with the statistics behind this, in only eight per cent of cases did the court refuse to order the return of the child (again lower than the global average, which was 15 per cent). This seems to me to send out a clear message that the English courts will not tolerate child abduction without good reason. The reported cases of child abduction include a large number of cases where return was refused, but potential abductors should not take heart from this: it is the nature of things that successful defences are more likely to be reported, precisely because they are unusual.
Lastly, what of the reasons for the court refusing to order a return?
The most common reason, making up one third of all reasons for refusal, was Article 13(b) of the Convention – that there was a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The other two main reasons were the child’s objections to being returned (22 per cent of all reasons) and that the child was found not to be habitually resident in the state requesting the return (17 per cent of all reasons).
In short, I think that the statistics demonstrate that any parent considering abducting a child to this country is unlikely to ‘get away with it’, and that any perception to the contrary is clearly misplaced. Obviously, all of the above only relates to cases where the other country was a signatory to the Hague Convention, but recent case law (e.g. U (Children)) suggests to me that judges here are likely to use similar principles in non-Convention cases.