International Child Abduction and the Mature Child Exception

International child abductions are difficult and complex situations.

Being wrongfully removed from or retained outside their habitual residence can have a detrimental impact on a child. The child’s habitual residence is the centre of their life before the wrongful removal or retention, where they have the strongest familial and social ties.

Abruptly taking the child from this environment can lead to serious consequences.

Unfortunately, the increase in the number of families moving across borders has also resulted in a rise in international child abductions. The process of locating, recovering, and returning these children can be complex and challenging.

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Hague Convention”)¹ is a multilateral treaty designed to protect children from the harmful effects of wrongful removal and retention across international borders.² Its primary goal is to ensure the prompt return of wrongfully removed or retained children to their country of habitual residence, thereby upholding the custody and parenting arrangements that were legally in place before the abduction.

The Hague Convention’s Return Mechanism

The Hague Convention establishes a procedure to facilitate the prompt return of children, under the age of 16, who have been wrongfully removed or retained from their country of habitual residence. The Hague Convention operates on the principle that, except in exceptional circumstances, the wrongful removal or retention of a child across international borders is contrary to the child’s best interests.

The return of the child to their habitual residence safeguards the child’s right to maintain contact with both parents, promotes continuity in the child’s life, and ensures that custody and access determinations are made by the most appropriate judicial authority.

An application for a return order requires the applicant to establish the following:

1. that the child was habitually residing in the other party,
2. that the removal or retention of the child constituted a breach of custody rights, and
3. that the applicant was actually exercising those rights at the time of the wrongful removal or retention.

The return order is designed to restore the status quo that existed prior to the wrongful removal or retention, and to deprive the taking parent of any advantage gained as a result of the wrongful removal or retention. In so doing, the prompt return of the child also serves as a deterrent to international abduction. Under the Hague Convention, when a child has been wrongfully removed from their habitual residence, the court must order the child to be returned, unless the party removing the child can establish at least one of six narrow exceptions.

Exceptions to the Duty to Return the Child

The Hague Convention provides for limited exceptions to the principle of the return of the child. These exceptions ensure that the court considers the best interests of the child while upholding international parenting arrangements and custody agreements.

If these exceptions are raised and established successfully, the court is not bound to order the return of the child to the country of their habitual residence. In other words, the court may then exercise its discretion not to order the return of the child. These exceptions appear in Articles 12(2), 40 13(1)(a),41 13(1)(b), 13(2)42 and 20 of the Hague Convention.

The exceptions (or defences) to the return of a child include:

1. the mature child exception;

2. that the petitioner (parent seeking the return of the child) was not actually exercising custody rights at the time of the removal or retention;

3. consent or acquiescence by the petitioner for the removal or retention;

4. that more than one year had passed from the time of the wrongful removal or retention until the date the petitioner commenced a judicial or administrative proceeding for the return of the child;

5. that the return of the child would subject the child to violation of basic human rights and fundamental freedoms; or

6. if returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation or risk of harm.

Understanding the Mature Child Exception

One of the notable exceptions to the mandatory return of a child under the Hague Convention is the “mature child exception.” This exception recognizes that as children grow older, their preferences and opinions become increasingly significant in determining their best interests.

Criteria for the Mature Child Exception:

• Age and Maturity: The child must have reached an age and level of maturity where it is deemed appropriate to consider their views. While the Convention does not specify an exact age, courts generally consider children around 12 years old and above to be capable of forming a reasoned opinion or preference.
• Objection to Return: The child must express a clear objection to being returned to their country of habitual residence. This objection must be more than a mere preference to return; it must, in the eyes of the court, reflect a well-considered and consistent stance.

Legal Considerations

When invoking the mature child exception, courts conduct a thorough evaluation to ensure the child’s views are genuinely their own and not unduly influenced by either parent.

This often involves:

• The child’s evidence: The child may be asked to provide oral evidence before the court;
• In-Camera Interviews: Judges may conduct private interviews with the child to assess their maturity and understand their reasons for objecting to the return;
• Psychological evaluation: The child may be referred to a psychologist to determine the child’s emotional and psychological state, and to provide insight into their views and preferences; and
• Appointment of children’s counsel or guardian: Children’s counsel, acting on behalf of the child, or another guardian may be appointed to provide insights into the child’s emotional and psychological state, ensuring their objections are based on genuine concerns.

Implications

The mature child exception is based on a mature child's right to decide not to be returned against their will, allowing them to determine their own best interests. The mature child exception underscores the importance of considering a child’s evolving needs and preferences in international custody disputes. It ensures that children who are old enough to articulate their views are heard, and their best interests are prioritized.

His or her decision between two countries essentially reflects whether the child wants to continue living with the abducting parent or be returned to the jurisdiction of their habitual residence. The court may, however, discount the child's objection if it suspects one of the parents has unduly influenced the child.

Conclusion

The Hague Convention’s mature child exception is a vital provision that balances the need for prompt return of children taken without consent to another country, with the recognition of a child’s growing autonomy. By carefully evaluating each case, courts strive to make decisions that uphold the child’s best interests and respect their developing sense of agency in deciding where they are to live.

¹Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).

²The HCCH Hague Conference on Private International Law – Conférence de La Haye de Droit International Prive, “Child Abduction Section”