THE 1980 HAGUE CONVENTION AND IMPORTANT CONCEPTS RELATED TO THE CONVENTION

The 1980 Hague Convention is an agreement designed to address international child abduction cases. With the increase in international marriages and the potential for these marriages to end in divorce, one parent may tend to take the child to another country. This situation can be carried out unlawfully for various reasons. For example, disputes between parents, using the child as a tool against the other parent, or believing it to be in the child's best interest can trigger this situation.

The convention is based on cooperation between member states and provides for a rapid procedure among central authorities. Thus, it ensures an effective fight against child abduction cases carried out by parents. The convention obliges the authorities of the country where the child is located to promptly return the child to their habitual residence country, but it allows for a limited number of exceptional cases.

The concept of habitual residence is important for the application of the convention. The child's best interests and protection rights are determined according to the law of habitual residence. Therefore, it is essential to understand the concepts of habitual residence and rights of custody and visitation correctly. These regulations aim to protect the child's current situation and ensure their rights are upheld lawfully.

CONCEPT OF HABITUAL RESIDENCE

The 1980 Hague Convention uses the concept of "habitual residence" to determine the place where the child was actually living before the abduction. This term is preferred over concepts like "domicile" or "residence" in different countries because habitual residence reflects a more factual and real situation than domicile. The concept of habitual residence refers to the place where the child was living, accustomed to, and had their social environment immediately before the abduction.

The Hague Convention does not define the concept of habitual residence, which provides flexibility for courts, and the definition has been shaped by case law. Thus, the aim is to make an objective assessment by determining the child's true habitual residence in each specific case. The Constitutional Court and the Court of Cassation have stated that habitual residence should be evaluated as the place where the child was accustomed to and had their social environment.

There are two main criteria for determining habitual residence: one is based on the will of the custodial parent, and the other is an independent determination focused on the child's social environment. In practice, the second criterion, which considers the child's social environment where they conduct their daily activities, is generally used. The Constitutional Court also supports this approach.

GROUNDS FOR REJECTING A RETURN REQUEST UNDER THE HAGUE CONVENTION

The 1980 Hague Convention aims to ensure the return of the abducted child who has been wrongfully removed or retained to their habitual residence. However, in some cases, returning the child may not be in their best interest. Consequently, exceptions to return have been included in the Convention. These exceptions grant judges discretion to refuse the return under specific conditions, considering that the best interest of the child may vary in each case.

The exceptional grounds for rejecting a return request are outlined in Articles 12, 13(a), 13(b), and 20 of the Convention:

1. Article 12: If the request for return is made more than one year after the child’s abduction or retention, and the child has adapted to their new environment, the return request may be refused.
2. Article 13(a): If the return of the child has not been approved by the person who actually cares for the child and this person is not authorized to make decisions regarding the child’s habitual residence, the return may be refused.
3. Article 13(b): If returning the child would expose them to physical or psychological harm or put them in an adverse situation, the return request may be refused.
4. Article 20: If the return of the child would be contrary to the fundamental human rights and freedoms of the state where the return is to be made, the return may be refused.

THE EXAMINATION OF COURT DECISIONS REGARDING THE REFUSAL OF THE CHILD'S RETURN IN ACCORDANCE WITH ARTICLE 13/1-A OF THE CONTRACT

According to a decision given in New Zealand, two girls aged 7 and approximately 3 were living in Germany. In 2001, the mother consented to the children going on a vacation to New Zealand with their father. Before the agreed-upon return date, the father called the mother and expressed his desire to keep the children with him. The parties had several phone conversations, and the mother regularly spoke with the children over the phone. In one conversation, the mother stated that she would not insist on the children's return and sent her written consent via fax. According to the court's assessment, the mother, despite being aware of her rights under the Convention, gave consent to the wrongful retention. However, the mother was going through a traumatic period, as the father frequently mentioned in phone calls that he would commit suicide if the children were returned. Since this consent was not given with the mother's free will, the return refusal under Article 13/1-a was not justified. It is generally accepted that consent must be clear, unequivocal, and leave no room for doubt. The primary purpose of the Convention is to preserve the existing status quo; therefore, the issues of consent and acquiescence should be interpreted narrowly in line with the Convention’s objectives, taking into account the best interests of the child. An inquiry into the intent behind the consent will be made; however, consent and acquiescence should be narrowly interpreted as the petitioning parent may have given consent out of desperation, without proper consideration, in an attempt to reunite with the child. Statements and acknowledgments made during the process of reaching an amicable settlement should not be interpreted as granting consent or acquiescence to unlawful abduction or retention.

In the case of Aubry v. Aubry, Giray, the court considered the father's continued efforts to seek reconciliation in order to maintain communication with his children, his allowance for the children to stay with their mother, and his enrollment of the children in a school in France after the relocation as indicating consent to the unlawful relocation. However, actions taken by the rights-holder under emotional distress should not be misinterpreted. For instance, a parent's involvement in sending medications or toys to their children in the new environment should not be construed as consent that negates the unlawfulness of the relocation.

According to the Paul and Charles; the father, Paul, sought the return of his child, Charles, born on 12 October 2005 in Subiaco, Australia, to his habitual residence in Australia. After the parents separated in 2009, they entered into an agreement in 2010 regarding the child's living arrangements. According to this agreement, Charles would attend a French school in Australia. However, due to health issues concerning her mother, Charles' French mother, Catherine, had to make an unplanned trip to France and took Charles with her, with the father's consent, under the condition that she would return him to Australia by 13 May 2011. However, in April 2011, Catherine filed for divorce in a French court and sought custody of the child. On 4 May 2011, she informed the father that she would not be returning Charles to Australia. On 28 July 2011, the father appealed the denial of his application for the child's return, and the court ruled that the child should be returned to his habitual residence in Australia.

According to the court, although the father had consented to Charles being taken to France, this consent was for a specific period. The father had agreed to the child being in France temporarily, not to settling there. During this time, the father was concerned for his child, maintained regular contact with the mother, and traveled to France during visitation periods to see Charles. In emails to the mother, he expressed that his son's best interests were paramount to him and that he would respect any court ruling on the matter. He provided financial support and did not obstruct Charles' schooling in France. The court determined that the father's trips to France to see his child were due to his concern and responsible parenting and did not constitute implied consent for the child to remain in France permanently.

THE IMPORTANCE OF INTERNATIONAL COOPERATION UNDER THE HAGUE CONVENTION IN CASES OF CHANGING A CHILD’S HABITUAL RESIDENCE

International child abduction cases have serious impacts on both children and parents, depriving children of contact with the other parent, love, affection, and protection, and removing them from their familiar home environment. In these situations, the child must adapt to a new culture, a different legal system, a new language, and often a different social structure. These differences make international child abduction cases complex and challenging to resolve.

Within the framework of the 1980 Hague Convention, the return of children to their habitual residence is crucial. However, for this process to be effective, international cooperation is of great importance. Central authorities in each country should play an active role in resolving child abduction cases and ensuring the safe return of children under the Hague Convention. Cooperation among central authorities is critical for the swift and accurate exchange of information, expediting return procedures, and safeguarding the best interests of the child. Additionally, it is of great importance for child abduction lawyers representing the parties in the case to work in coordination with local authorities.

International cooperation also ensures protection against the potential physical or psychological harm that children may face. Decisions by the Constitutional Court and the European Court of Human Rights emphasize that the child’s best interests should be prioritized. However, the administrative and judicial processes need to proceed quickly to ensure the return of the child before they become accustomed to the country where they have been taken. Otherwise, issues such as the weakening of the child’s established social environment and emotional bonds may arise.

CONCLUSION:

The key findings of the study highlight that in cases of child abduction by a parent who does not have custody, the most crucial factor to consider in return proceedings is the child's best interests. If the child's best interests necessitate that they should not be returned and remaining in the country where they were taken provides a more suitable outcome, the return request should be denied. The 1980 Hague Convention focuses on the risk of physical or psychological harm to the child, and it stipulates that if such risks are present, the return request should be denied. The Constitutional Court (AYM) and the European Court of Human Rights (ECHR) also discuss these types of situations in their rulings.

Other circumstances that might lead to the denial of a return request include the child's adaptation to the country where they were taken, the establishment of a social environment there, and the weakening or absence of social, psychological, and emotional bonds with their habitual residence. If these conditions are supported by expert reports, the return of the child should be denied.