IF A DEFENCE IS PROVED, IS A RETURN AUTOMATICALLY REFUSED?

Not necessarily- the court has discretion whether to order a return or not.

In all these defences under Articles 12 or 13, the abducting parent has to prove that the defence should apply. If he succeeds, the court will order that the child should not return to the country of his habitual residence.

But even if he proves a defence, the court may still order the child's return (Article 18). The court will take into account the child's interests, but balance them against the fundamental purpose and spirit of the Convention, which is to order the child's return.

The court may look at the following factors in exercising its discretion:

 

• the comparative suitability of the courts in the competing jurisdictions to determine the child's future in the substantive proceedings
• the likely outcome (in whichever court they are heard) of the substantive proceedings
• the consequences of any acquiescence, particularly the extent to which a child may have become settled in the requested state
• the situation which awaits the abducting parent and the child if compelled to return to the requesting jurisdiction 
• the applicant's delay in pursuing his Convention rights. 
• the expected emotional effect on the child of an immediate return order 
• the extent to which the purpose and underlying philosophy of the Hague Convention will be frustrated if a return order is refused.