Cases brought under the Hague Convention on International Child Abduction are intended to be completed as quickly as possible in order to reduce the impact on the abducted child’s life. If the child can be returned to his or her home country as quickly as possible, the negative effects of the abduction can be mitigated. This approach makes sense because the longer a child stays in the country that he or she was abducted to, the more that the new country will begin to feel like “home.”
Therefore, when there is a delay in filing for a Hague case, the child may have spent a considerable amount of time living in his or her new county. As time passes, the child adapts to the language and customs of the new country and it begins to feel more like “home” than his or her original residence. Once this adjustment period passes a certain point, returning the child to the original country would only frustrate the child and require yet another period of cultural readjustment, potentially harming the child’s mental and physical heath as he or she struggles through another round of culture shock.
On the other hand, not returning a child because he or she has already adapted to his or her new home country is essentially rewarding the abducting parent for the wrongful abduction. Perversely, a rule that too easily rewarded abducting parents in this way would actually encourage the abduction of children.
In order to balance these two concerns, courts have ruled that there is an involuntary acquisition of habitual residence when a child is wrongfully removed only after a long period of time has passed. Rather than rewarding the abducting parent, this rule is designed to punish non-abducting parents who delay too long in filing a Hague case.
How long this delay must be is a relative concept and can change depending on the judge. In Re B the court held that 15 months was not enough to involuntarily obtain habitual residence but a 12 year old that has lived most of his life away from his origin State has probably acquired residence in his new State. This is a fact specific issue and is considered on a case by case basis.