The International Law Review Association Student Forum
Abstract
The Hague Convention on the Civil Aspects of Child Abduction (“the Convention”) is a multilateral treaty signed in 1980 which aims “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”; and to ensure mutual respect of the “rights of custody and access” between the contracting states. As of 2025, there are 103 signatories of the Convention who have committed to taking “all appropriate measures” and employing “the most expeditious procedures available” to ensure that children wrongfully within their territory can be returned home. Although the Convention has existed for nearly half a century, rapid globalization has led to a greater number of families with a multinational background, meaning a greater number of international child custody disputes. Despite decades of guidance from courts and hundreds of enabling statutes, contracting states are still determining what the language of the Convention means for their citizens.
Article 3 of the Convention has served as the topic of great debate for decades; it states that for “the removal or retention of a child to be considered wrongful”, the child must be a “habitual[] resident immediately before the removal or retention” of the state wishing to exercise the Convention. The importance of this Article lies in the fact that “[t]he habitual residence determination is the basis on which the Child Abduction Convention’s ‘summary return mechanism’ is founded,” and thus it is the very first thing a petitioner must prove before their rights of custody and access can possibly be vindicated. The problem is that the Convention purposely does not define habitual residence, leaving contracting states to develop their own doctrinal approaches to determine where the child habitually resides. The approaches taken by contracting states to determine “habitual residency” can be sorted into three categories: (1) the settled parental intent approach, (2) the child-centered approach , and (3) the hybrid approach. This article will present a brief comparative analysis of all three approaches, the problems that could arise from having no single definition, and the benefits the Convention’s signing parties would gain from adopting a singular approach to habitual residency. Additionally, this article will make the argument that the hybrid approach is the most appropriate method of analysis which best aligns with the language and purpose of the Convention.
Recommended Citation
Emily McAnally,
Case Note,
Home By Now? “Habitual Residence” and the Hague Convention on the Civil Aspects of International Child Abduction,
ILRA Student Forum
(2025)
https://doi.org/10.25172/ilrasf.4.1.2
