Hague Convention on International Child Abduction

As globalization on both a personal and business level has increased the world has seemingly become smaller. Romantic relationships — and breakups — that cross national borders have become more common. Relationship breakdowns, often nasty for adults in the same locale, can be even more complicated when children and multiple government jurisdictions are involved. One of the worst outcomes of these breakups is the abduction of children. One parent decides to take the child back to the parent’s country of origin. To make things less complicated, the Hague Convention on International Child Abduction was created.

A 2012 study by Nigel Lowe and Victoria Stephens at the Cardiff Law School in the United Kingdom found that the global number of Hague Convention applications to retrieve an abducted child had risen by 45% since 2003. According to a U.S. State Department report, the number of new international parental child abduction cases in the United States alone has doubled since 2006, from 642 to 1,135, with the majority of cases involving children taken to one of the convention’s 89 signatory countries. But the child return rate is far from satisfactory. In 2009, the report said, only 436 children abducted to or wrongfully retained in other countries were returned to the U.S. Of these children, 324, or 74 per cent, were from a convention country. (www.cnn.com)

In this blog, we will discuss the procedures and basics of the Hague Convention on International Child Abduction. The Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction is a “multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.” The Hague Conference monitors the implementation and promoting of international co-operation in the area of child abduction (www.hcch.net).

The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed before an alleged abduction, dissuading a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

For a full list of the 89 Convention countries, please click on this link: http://adoption.state.gov/hague_convention/countries.php

Procedure

The Convention does not provide any basic human rights. Child custody disputes do not have any bearing in this matter, as determination of “habitual residence” is the main factor. Return of the child is to the member nation rather than specifically to the left-behind parent.

The Convention mandates the return of any child who was a “habitual resident” in a contracting nation before an action that constitutes a breach of custody. The child’s “habitual residence” is not determined after the alleged incident. A parent cannot unilaterally create a new habitual residence by wrongfully removing a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is burdened by legal technicalities, the court must look at 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. The final decision should be made within six weeks from the date of commencement of the proceedings (www.haguedv.org).

Child Custody Jurisdiction in the United States

Custody disputes in U.S. courts may concern orders not implicated in the Hague Convention. In such cases, the court must look to domestic law to determine whether they have jurisdiction and the extent of their authority. Jurisdiction in United States custody cases is determined by federal and state laws, including the Parental Kidnapping Prevention Act (PKPA) and, in those states which have adopted it, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Wrongful Removal or Retention

The Convention provides that the removal or retention of a child is “wrongful” whenever:

“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

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.

“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.” (www.hcch.net)

Domestic Violence and the Risk of Return

Some courts have held that the existence of domestic violence would constitute a sufficiently “grave risk” of physical or psychological harm if the child was returned. Courts routinely consider evidence of past physical and/or psychological abuse to the child, and to some extent, the parent, as well as the likelihood of harm to the child upon return. However, determinations have not been made from uniform fact patterns. Additionally, even where a child is found to face a grave risk if returned, courts require a comprehensive analysis of alternative care arrangements and legal safeguards that would facilitate a safe return, as well as the abilities of the authorities in the child’s habitual residence to enforce any such arrangement (www.haguedv.org).

If you would like more information or have questions regarding international child custody disputes and possible solutions to such disputes, please contact The Law Office of Matthew J. Rudy for a free one-hour consultation.