If your child has been abducted and your application for return is made less than a year after the abduction, then the court must order the return of your child unless one of certain defences (see below) has been proven by the parent who has taken the child abroad.
If you make your application more than a year after the abduction, then in addition to looking at the defences, the court also has to consider whether your child has settled in his or her new country.
The court is less likely to take this view, if your child’s whereabouts have been concealed from you and your child has been moved around from place to place by the other parent to avoid your finding them.
Defences
If your application has been made swiftly, there are only three possible defences that the abducting parent can raise in defence of the abduction:
That you have consented to the abduction. The abducting parent must be able to show to the court and prove that there was an agreement. It is not good enough for them to say you did nothing to stop the child being removed and therefore you must have consented to.
That there is a great risk of physical or psychological harm or an intolerable situation. This defence would be difficult to establish by a parent who has abducted the child.
The court will of course not want to expose a child to potential harm if returned and therefore it may seek undertakings from the parent that has made the application, for example, they could provide financial support or move out of the family home to let the child return to the family home.
The abducting parent may try and argue that returning the child will place the child in an intolerable situation. The test is whether the child will be placed in an intolerable situation and not the parent. The court cannot order the parent to return home, but it can order the child to return home even if the abducting parent does not want to return home.
The court may also refuse to order that a child be returned home if it finds the child genuinely objects to being returned and is of a sufficient age and maturity to provide this view. The court will obviously take into account the fact that the child’s views may be strongly influenced by the views of the abducting parent.
Unless one of the defences have been established or if there has been a delay of over a year and it has been demonstrated the child is settled in the new country, the court has no discretion in these cases and must order a return of the child to their home country.