<P> "a . It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and </P> <P> "b . at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention ." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence . </P> <P> "From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is...wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise ." </P> <P> The Convention mandates return of any child who was "habitually resident" in a contracting nation immediately before an action that constitutes a breach of custody or access rights . The Convention does not define the term "habitual residence," but it is not intended to be a technical term . Instead, courts should broadly read the term in the context of the Convention's purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child's "ordinary residence ." The child's "habitual residence" is not determined after the incident alleged to constitute a wrongful removal or retention . A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child . Because the determination of "habitual residence" is primarily a "fact based" determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children's location and the settled nature of the family prior to the facts giving rise to the request for return . </P>

Hague convention on the civil aspects of international child abduction citation