Understanding protective measures in international child abduction cases

When a child has been wrongfully removed from or retained outside their country of habitual residence, the international framework under the Hague Convention on the Civil Aspects of International Child Abduction (1980) comes into play. In England and Wales the factsheet published by the judiciary provides key guidance on what protective measures may be available, how they are used, and their significance.

Here are the main take-aways and what they mean in practice.

What is the context?

• The factsheet is designed for judges, parties, parents and mediators involved in applications under the 1980 Hague Convention in England and Wales.
• It recognises that one of the most difficult issues in these cases is ensuring safe return of the child while safeguarding against risk of harm.
• Specifically, when a returning order is opposed under Article 13(1)(b) of the Convention (the so-called “grave risk” exception), the availability and sufficiency of protective measures in the returning country is a critical factor.

What are protective measures?

In the factsheet, “protective measures” refers to legal or practical safeguards which may be put in place in England and Wales (or by mutual judicial cooperation between states) to protect the child (and often the left-behind parent) in the context of a return under the Hague Convention.

Examples include:

• Occupation and non-molestation orders
• Undertakings by a parent (e.g., not to remove the child again)
• Domestic Abuse Protection Orders
• Parental responsibility orders
• Financial orders and passport surrender
• General protection orders under the court’s inherent jurisdiction

Why are these measures important?

1. Risk mitigation: If a parent argues that returning the child would expose them to a grave risk of physical or psychological harm (Article 13(1)(b)), the court must consider whether adequate protective measures exist to reduce or avoid that risk.
2. Speed and international cooperation: Because return applications under the Hague Convention are typically fast-track, it’s vital that judges, parents and representatives understand what protections are realistically available and enforceable in the relevant jurisdiction. The factsheet helps summarise what England & Wales can offer.
3. Cross-border enforceability: Some measures may involve orders from another country (mirror orders) or cross-jurisdictional recognition and enforcement, and so it matters how robust the protections are in practice.

Key points for England & Wales

The factsheet emphasises that information about protective measures should be gathered rapidly in return-applications because over 100 countries are party to the Convention, and each may have different protections in place.

• For England and Wales, a number of specific protections are outlined including:
  • Occupation/non-molestation orders under the Family Law Act
  • Undertakings given to court
  • Domestic Abuse Protection Orders
  • Parent Responsibility Orders
  • Financial orders
  • Passport surrender orders and other travel restrictions

The factsheet also highlights the role of the International Hague Network of Judges (IHNJ) in facilitating direct judicial communications and gathering information about protective measures in other states.

What this means for parents and practitioners

• If you are a parent faced with the traumatic scenario of a child being wrongfully removed or retained abroad, you should understand that the legal system provides more than just “return or not”: it also offers a range of protective tools to ensure the child is safe.
• When arguing a return or resisting one on the basis of risk of harm, it is essential to present, either in the originating country or here in England & Wales, what protective measures can or cannot be put in place. The factsheet helps map out the sorts of orders and protections available.
• For legal practitioners and mediators: this factsheet is a useful summary of what can be requested, what can be ordered, and what to check in practice (e.g., enforceability, clarity, speed) in the English and Welsh legal system.
• For cross-border cases: knowing whether the requested state can and will enforce certain measures is vital. The presence of undertakings or orders that are not enforceable may weaken a “safe return” argument.
• In all cases: While the Hague process emphasises the prompt return of the child to their home country, the child’s welfare remains paramount. Protective measures serve that welfare imperative.

Challenges and practical considerations

• Enforceability: A protective order means little if it cannot realistically be enforced in the relevant country or jurisdiction.
• Speed: Hague matters often require urgent action; delays in identifying or implementing protective measures may affect outcomes.
• Legal cost and representation: Complex cross-border protective issues often require specialist legal support; in some cases, delays in representation can disadvantage a parent.
• Children’s welfare and voice: The factsheet alludes to the need to consider children’s welfare in return decisions; recognising their views and ensuring their safety is key.
• Changing jurisdictions: Each state may have different protections; what works in England & Wales may differ elsewhere, so comparative understanding is required.

Final thoughts

The “Factsheet on Protective Measures in England and Wales” is a valuable resource for anyone involved in international child abduction cases. It reframes the return process from being solely about jurisdiction or right of custody, to being about how children can be returned safely, or protected when they cannot be returned. For those navigating this emotionally fraught and legally complex area, understanding both the return mechanism (under the 1980 Hague Convention) and the protective scaffolding that the courts can provide is essential.

If you are involved in or anticipate an international child abduction scenario, I would strongly recommend consulting this factsheet alongside specialist legal advice: no two cases are the same, and the details matter.

About the author

Heading up the Family team in London is Senior Associate Solicitor Georgina Emerson, a Resolution Accredited Specialist in child abduction and complex matrimonial finance. Georgina focuses on international child abduction and relocation matters, bringing recognised expertise to these sensitive cross-border cases.