Yes. The main limitations of the Hague Convention are that:
- The court hearing the case does not consider the child's welfare in deciding to order a return unless certain defences apply
- a return order may separate a returned minor from siblings from the removing parent's previous marriages or relationships - this is not a concern, in general
Israeli Case Study:
Sometimes strict application of the Convention will result in harsh or even cruel consequences, as the 2003 UK case of Re B (a minor) showed. Here, the English High Court returned a toddler, wrongfully retained in England, to Israel, even though this meant she would be separated from her siblings who were her divorced mother's other children from previous marriages, as their fathers would not allow them to move to Israel. The judge remarked that he was not allowed to consider the minor's best interests. The mother, he said, was left with the 'cruelest of choices' – between returning with her baby and abandoning her other children, or staying with them in the UK and letting the Israeli father take the child back to Israel. The mother, who was represented by our law practice, was later reunited with her other children after the Tel Aviv Family Court granted her custody of her daughter and permission to relocate to the U.K. with her.
- The Convention is not always interpreted and applied consistently in all member countries; some are more lax and some are more stringent. Critics claim that certain countries have a 'poor' Hague record (of returning abducted minors), while others have a 'good' Hague record. Accordingly, a parent abducting a child to a country with a 'poor' Hague record will have a better chance of successfully defending proceedings under the Convention than if he/she 'abducted' the minor to a country with a 'good' Hague record.
- Undertakings are not always honoured when a child has been returned to the country of habitual residence. The parent applying for the child's return may impress the court about his sincerity and ability to provide for the child upon his /her return until the court abroad deals with the issue. The court, which may find it harder to get a character impression of someone from a different country, may misjudge his sincerity or ability to provide for the minor upon his/her return, and may not really investigate the prospects of this materializing. For example, while a court ordering the return of the child may oblige the applying parent to provide accommodation and maintenance for the child upon its return, in practice this might not occur, and the returning parent will have to bring legal action later regarding this.
- The Convention is often criticized for being 'toothless' as regards enforcing assess or visitation rights. Its role ends with filing of a plea to uphold these rights, and for encouraging, arranging and facilitating meetings between the child and the 'left-behind' parent. The 'left-behind' parent will need to bring legal action in the country where the child is to enforce access rights.
- The Convention only applies to minors under the age of 16.
- The Convention does not, in principle, apply to unborn children being carried by pregnant mothers, though it has been argued that Hague Cases can be brought after the birth in the country where the parents were not habitually resident prior to the birth.