What happens if a child is taken from a country which is not part of the Hague Convention and brought to England? Your options explained

A parent can make an application to the High Court of England and Wales seeking the return of the child to their country of habitual residence.

Although the Hague Convention provides a specific framework for dealing with child abduction cases between participating countries, the English Court is not prevented from dealing with cases involving non-Hague countries. Instead, the Court may exercise its Inherent Jurisdiction to determine what orders are necessary to protect the child’s welfare.

The Court will carefully consider all of the circumstances, including:

• Where the child was habitually resident before being brought to England;
• The circumstances surrounding the child’s removal;
• Any orders already made by foreign courts;
• The child’s welfare and best interests; and
• The extent to which the Courts of the child’s home country are best placed to determine longer-term arrangements.

In appropriate cases, the High Court may order the child’s return to the country from which they were removed, enabling any welfare issues to be determined by the Courts in that jurisdiction.

A key consideration in these cases is the principle of international comity, namely the respect that Courts of one country give to the laws and judicial decisions of another.

Where a child has been brought to England from a non-Hague country, the English Court will often consider whether the Courts of the child’s home country should be given the opportunity to determine disputes concerning the child’s future. This can be particularly important where proceedings are already underway abroad or where there are existing foreign court orders.

It is often necessary for legal action to be taken in both countries. Lawyers in the child’s home country may be able to obtain orders confirming custodial rights, requiring the child’s return, or addressing welfare concerns.

Co-ordinated legal action across jurisdictions can significantly strengthen a parent’s position and assist the English Court in understanding the wider context of the case.

As with all international child abduction cases, time is often a critical factor. Delays can make cases more complex, particularly if a child becomes settled in England or new welfare considerations arise.

Every case involving a non-Hague country is unique. The approach taken will depend on the child’s circumstances, the laws of the country involved, and the evidence available. Seeking specialist legal advice at an early stage can help identify the most effective strategy and maximise the prospects of securing a child’s return.