The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty that provides an expeditious method to return a child who was wrongfully taken by a parent from one country to another country.

When an abduction occurs, the parent seeking the child's return will commence proceedings by making an application to the Central Authority.

[38] The General Principles and Guide to Good Practice, Hague Conference on Private International Law explains, at page 43, that a significant number of cases interpreting 'rights of custody' under the Convention supports the view that a right of access combined with a veto on the removal of a child from the state of habitual residence, constitutes real rights of custody.

[41] Some Contracting States take the position that an Article 15 determination should report only on matters of national law regarding rights of custody, and not to extend the analysis to classify the removal as wrongful, which is a question for the court requesting the Article 15 determination.

[41] The Convention provides special rules for admitting evidence, independent of the evidentiary standards set by the domestic laws of each Contracting State.

[43] Further, the court in which a Convention application is proceeding, when determining whether there is a wrongful removal or retention, may take judicial notice of the law in the State of habitual residence of the child, without requiring the parties prove that State’s law as a matter of fact through evidence.

While the best interests of the child is central to legal decisions involving children, it does not play a role in a Convention application.

The Convention presupposes that the child’s best interest is served by their prompt return to their State of habitual residence.

That being said, "the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention”.

For some Contracting States, "actually exercising" is defined broadly so that some minimal involvement between the parent and child is enough.

The parent resisting the return order is advised to adduce as much evidence as possible about the child’s school, friendships, and community connections in the new State.

[58] Other jurisdictions look to the child to assess whether or not they are settled in their new environment by taking a literal approach to settlement.

[61] To accept a child’s preference as sufficient would undercut the objectives of the Convention, encouraging parents to abduct their children, settle in a new State, and then “rely on their children’s contentment to avoid being returned to the jurisdiction which should properly deal with their custody and residence.”[62] Some Contracting States have legislated precision into the level of objection required.

[68] Jurisprudence in the European Union has reversed the requirement: instead of taking into account the views of the child if it is appropriate to do so, based on age and degree of maturity, the European Union has established that the court must take into account the child’s views unless it is inappropriate to do so due to age or maturity.

This is especially true if the abducting parent is suspected to be manipulating or alienating the children, influencing their objections to return.

Examples include where there is war, serious civil unrest, or a natural disaster in the State of habitual residence, or where the parent applying for the return order has been abusing the child.

[73] In X v. Latvia,[74] the European Court of Human Rights held that the parent who opposes the return of a child on the basis of Article 13(b) must adduce sufficient evidence of the existence of a risk that can be specifically described as grave.

[76] It is also possible for the State hearing the Convention application to conduct an investigation into the abuse allegations before deciding whether or not to order the child’s return.

In an English case, Re R. (A Minor Abduction), the child’s threats to commit suicide were central to the Court deciding not to order the return.

[78] Contrast this with the approach taken in Israel, where the Court rejected the argument that a child’s previous suicide attempt in the State of habitual residence justified denying the return.

[83] Poor financial circumstances have factored into the analysis when deciding not to order the child’s return in Australia,[84] the Netherlands,[85] and Scotland.

The Canadian case AMRI v. KER,[87] provides an example of a situation where the Court will look to their own laws regarding human rights and fundamental freedoms to determine whether or not to order the return.

According to Canadian law, the child’s refugee status gave rise to a rebuttable presumption of risk of persecution, engaging the child's s. 7 Charter rights to life, liberty and security of the person, and engaging the exceptions in Article 13 and 20.

These include undertakings to pay the airfare for the parent and child returning to the country of habitual residence, to pay interim support money, and to vacate the matrimonial home until the custody hearing so that the returning parent and child can live there.

In South Africa, undertakings can relate to “care, financial issues, custody and contact, non-prosecution, ‘protection of the parent who abducted the child’, protection of the child on their return, and ‘expedited court proceedings in the country of return’”.

Justice Connell struck the application because of the “manifest failure of [the] father to conduct his Hague Convention proceedings with proper diligence and speed”.