International Child Abduction: The Hague Convention

By | 2017-11-21T14:47:20+00:00 November 21st, 2017|Child Custody, Co-Parenting, Divorce|0 Comments

What Is It and Why Should You Care?

The United States and 93 other countries have adopted the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is a multilateral treaty that establishes procedures for returning internationally abducted children to the country of their habitual residence. It provides expeditious methods for the prompt return of children who have been taken by a parent and wrongfully retained across borders.

The main ideas behind the Convention are that children should be protected from the harmful effects of international abduction by a parent, and that the proper court in a child’s residence country should decide custody and visitation issues.

History of the Convention

In the mid-twentieth century, international communication and transportation were becoming universal and affordable, causing the world to shrink in size. The global increase of international couples followed. These couples were marrying, having children, sharing assets, and eventually divorcing. The 1960’s and 1970’s produced an increase in marriages and divorces between individuals of varying ethnic, religion, educational, and cultural backgrounds. The rise in divorce rates may be attributed to these differences, which became even clearer once these couples began raising joint-custody children.

Mothers and fathers were forced to face challenges in their marriages and in rearing their children, which were often stemmed by cultural, linguistic, and religious diversity in the relationship (particularly in heavily Muslim populations). This tension stemmed from questions like, with which religion should we raise our child? Which language should we speak in the household? How will we foster the child’s relationship with his family members in foreign countries? The issue of conflict of laws presented additional challenges; which national law will govern our custody of the child – that of the child’s birthplace or habitual residence? What if one parent removes the child to a country that is not the child’s residence?

Reports of international child abduction increased significantly in the 1970’s, as international marriages became more common and socially acceptable. Divorces among international couples are one of the leading sources of cross-border child abduction.[1] Divorcing parents who live in the same country can assemble joint custody arrangements more practically, whether voluntarily or by court order. Divorcing couples that wish to reside in separate countries create far more complications. In resolving family disputes, “money can be divided but children cannot.”[2] Parents in international couples fear that their partner will remove their child to another country post-divorce (usually the parent’s home country), never to be seen again, whether with innocent or vindictive intent.

What Is the Hague Convention on the Civil Aspects of International Child Abduction?

The Hague Convention on the Civil Aspects of International Child Abduction was adopted on October 24, 1980. While child abduction was by no means a novel issue at the time, the emerging ease of international travel, coupled with the rise in international marriage and divorce rates led to serious problems. The original signatory states targeted the ever-growing issue of international child abduction, intending to spare children the detrimental emotional effects of transnational parental kidnapping. Convention States were firmly in accord with the belief that:

The interests of children are of paramount importance in matters relating to their custody, desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.[3]

The Hague Convention now provides the citizens of Member States with a civil mechanism that protects the world’s children. Its provisions make available a system of cooperation between Central Authorities for the quick and safe return of abducted children.

The Convention is the most successful and effective of the Hague Conventions. Ninety-three states are bound to the treaty today. Multiple countries have ascended to the Convention since its adoption, the most recent addition being Zambia, which became a Convention State in 2014. The community of Member States has been growing steadily throughout the past several decades, each nation taking its own measures to implement and enforce the Convention at home.

What Is In the Convention?

Countries that are parties to the Convention have agreed that a child who was habitually resident in one Convention country, and who has been wrongfully removed to or retained in another country in violation of the left-behind parent’s custodial rights, must be returned. The scope and purpose of the Convention is: (1) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and access under the law of one country are effectively respected in the others.[4] The articles attend to the need for international cooperation, the application process for return of children, visitation and access rights, the rights and responsibilities of Member States and their citizens, the discharge duty of central authorities, and the process through which countries may accede to the Convention.

The Convention does not address which parent should have custody of the child. Any custody disputes upon the child’s return may be resolved in national courts in accordance with the best interests of the child.

When Does It Apply?

The Convention applies to a case of international child abduction if three criteria are met: (1) both the country of the child’s habitual residence and the country to which he/she was relocated must be Convention States; (2) the child must be younger than 16 years old; and (3) the child must have been “wrongfully removed or retained.” Removal or retention is “wrongful” if it is “in breach of rights of custody attributed to a person, an institution or any other body [] under the law of the State in which the child was habitually resident immediately before the removal or retention.”

The Hague Convention in the United States

The United States was one of the first to adopt the Hague Convention in 1981, though the treaty was not entered into force until approximately seven years later. The US was enthusiastic about the Convention due to the vast amount of migration to and from the country. Due to its global superlative as the “melting pot,” the country faced more annual international child abductions than any other signatory state. One factor that leads to the success of the Hague Convention in the US is that both state and federal courts have jurisdiction over Convention cases.[5] American and international courts have in common that domestic courts can almost always hear a case under the Hague Convention.[6]

Since the US ratified the Convention in July 1988, the Supreme Court has heard three Convention cases: Abbott v. Abbott, Chafin v. Chafin, and Lozano v. Montoya Alvarez.[7] In these cases, the Supreme Court addressed questions of interpretation under the Hague Convention. To reach these decisions, the Court examined the concepts of the Convention and the intent of its drafters, concentrating on terms like “rights relating to the care of the child,” “place of residence”, and “custody rights.” The Court looked to the text of the Convention as it related to the care of the child, eventually coming to a broad interpretation.

Due to its immense population and multicultural composition, the US made and received more applications than any other Member State.[8] A 2003 survey revealed that 286 (23%) of all return applications and 59 (25%) of all access applications were made to the US. In 2003, 11% of return applications received by Member States were made by the US.[9] The US enjoyed a 47% overall return rate in 2003 (and a 68% judicial return rate).

American Exception; the Grave Risk Defense

Almost all Convention States have included their own declarations and reservations to the Convention. For example, the US has made it difficult for abductors to assert the “grave risk” defense of Article 13. Article 13(b) says that:

[J]udicial or administrative authority of the requested State is not bound to order the return of the child if the person . . . which opposes its return establishes that . . . there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.[10]

In the US, this defense must be proven by “clear and convincing evidence” rather than the usual, less-demanding burden of a “preponderance of evidence.”

Why You Should Care

Each country is a sovereign nation, whose legal systems, law enforcement, and judiciaries must be respected. You might need the Convention even if you already have a custody order because other countries may not recognized US court orders. The Convention is a framework for countries to work together to resolve international abduction cases.

It is important to know both your rights as a left-behind parent, and also the consequences of removing your child from a territory without the proper authorization. Discuss your options with your country officer because each case is considered based on specific circumstances. You might also want to consult with your attorney about a possible Hague application and other options and issues before taking action.

There are a few things to keep in mind from the beginning: first, you do not need to have a custody order to file a petition for return, and you should not wait for one before filing. Second, submit a Hague application as soon as possible after a wrongful abduction occurs. A court might refuse to order return of a child if more than one year passes before you apply. Find out if the Hague Convention applies to your child’s case by contacting a country officer or knowledgeable attorney.

 

 [1] Brunilda Pali and Sandra Voet, Family Mediation in International Family Conflicts: The European Context, Institute of Criminology, 15 (2013).

[2] Id.

[3] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 [hereinafter Hague Convention].

[4] Hague Convention, art. 1. Oct. 25, 1980.

[5] Federal courts are granted original jurisdiction. 42 U.S.C. §11603(a).

[6] See Bromley v. Bromley, 30 F. Supp. 2d 857, 859 (E.D. Pa. 1998).

[7] 560 U.S. 1, 22 (2010); 133 S.Ct. 1017, 1028 (2012); 134 S.Ct. 1224, 1236 (2014).

[8] Nigel V. Lowe, The Operation of the 1980 Hague Abduction Convention – A Global View, 41 Fam. L.Q. 59, 65 (2007).

[9] Id.

[10] Hague Convention, art. 13. Oct. 25, 1980 (emphasis added).

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