Specialist lawyer for
international family law
Art. 13 HCCAICA contains the most frequently occurring exception regulation of the Hague Convention on the Civil Aspects of International Child Abduction.
According to Art. 13 par. 1 a) HCCAICA, the court or the administrative authority of the requested state is not obliged to return the child if the remaining parent has actually not exercised custody, if the remaining parent has consented to the removal or retention, or if it has subsequently approved.
The requirements for approval are very strict. The transferring parent must be able to prove that the approval of the remaining parent has been given seriously and unequivocally. However, written approval is not required. Approval can also result from the circumstances. However, this must be clear. In case of doubt, no approval can be assumed.
Strict requirements also apply to subsequent approval. It also does not have to be submitted in writing. If the subsequent approval should result from the circumstances, the circumstances must also unequivocally prove that approval has been given. Here, too, there is no subsequent approval if there are any doubts.
According to Art. 13 par. 1 b) HCCAICA, the court or the administrative authority of the requested state is not obliged to return the child if the return involves a serious risk of physical or mental harm to the child or otherwise puts the child in an unacceptable position.
This is also an exception to which strict requirements must be placed. There must be significant impairments. In addition, the impairments must be present at the time the application is submitted. Educational or economic impairments, as well as the question of whether the child is better off with the parent or the remaining parent, do not fall under Art. 13 par. 1 b) HCCAICA. A decision on custody must be made by the court in the country of origin. Significant impairments include, for example, abuse, mistreatment, drug or alcohol addiction, repatriation to a war zone, the risk of suicide or the psychological risk when siblings are separated.
According to Art. 13 par. 2 HCCAICA, the court or the administrative authority can refuse the return of a child if the child opposes the return and the child has reached an age and maturity in view of which it appears appropriate to take his or her opinion into account.
The Hague Convention on the Civil Aspects of International Child Abduction does not stipulate a minimum age from which the child's opinion is taken into account. However, the older the child is, the more likely their opinion will be taken into account. However, if the child is less than eight years old, the opinion of a child will only be taken into account in exceptional cases. Whether a child is mature enough to take their own opinion into account always depends on the circumstances of the individual case.