aka The Hague Convention on the Civil Aspects of International Child Abduction

For all the bad rap lawyers get with the general public, they are the architects of justice. And for all that justice provides us in terms of safety, few legal documents are more important than the Hague Convention on International Child Abduction.

Disputes over child custody is a bit of a novelty to law as the displacing of Neanderthal theories of women's rights is a recent development in legal history such that all such disputes before the middle of the last century were resolved as the father saw fit.

Now, in free and democratic societies, mother and father are equal right holders as regards their children.

When parents separate and one wishes to relocate to his native country, or move for employment purposes, anguishing decisions must be taken. Some do not bother with consulting and simply take off with the child to a new land.

childJustice systems are so very different from jurisdiction to jurisdiction and in most cases, even within a jurisdiction. This disparity plays into the abductor's plans and in fact, encourage international child abduction as a prompt and efficient means of resolving custody disputes, albeit immoral.

There was no standard judicial system for dealing with the prompt consideration of international child abduction cases followed by the speedy return of the child where he or she had been wrongfully removed.

In the early 80s, international lawyers - acting on a Canadian initiative - manage to achieve a consensus on a text of proposed law, a treaty, to deal with international child abduction using a standard process. The model - both in process and terminology - has a "weird" feel to it for family law lawyers who are used to dealing on a very local level, but then that weirdness is felt by family law lawyers around the world as the model is not to any specific domestic example but rather, an international law model.

In order for the convention to be of any assistance, both the country in which the child was abducted from, and the country to which the child has been abducted to have to be signatories to the convention.

As of August 2005, the following countries were signatories to the Convention: Argentina, Australia, Austria, the Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, China including Hong Kong, Colombia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark (except the Faroe Islands and Greenland), Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Moldova, Monaco, the Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia and Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, the United Kingdom of Great Britain and Northern Ireland, Cayman Islands, Falkland Islands, Montserrat, Bermuda, the United States of America, Uruguay, Uzbekistan, Venezuela, and Zimbabwe.

Each country that is signatory to the Convention takes steps to ensure that its local, provincial or "state" governments take such measures as are necessary to implement the Convention.

Where a child has been removed to a country not signatory to the Convention, the abductor has the significant advantage of forcing the innocent parent to initiate proceedings directly within the jurisdiction to which the child has been abducted. Often, the abductor will intentionally select a jurisdiction with an immature justice system, particularly one which does not recognize, for example, the equal status of women or non-nationals.

The typical process for a signatory country is to fully endorse the Convention by way of a domestic law. For example, in the United States, that law is the International Child Abduction Remedies Act.

Each country signatory to the Convention designates a central secretariat (called a "Central Authority") which then acts as a official liaison on Convention Court cases and communicates with the other signatory. Some countries, which have split or concurrent jurisdictions on family law, such as Canada, may sub-designate regional-based Central Authorities (for example, the Canadian Province of Quebec's central authority is the provincial ministry of justice).child abduction image

Here are the Central Authorities for some countries:

  • Australia - Attorney General
  • Canada - Department of Justice
  • China - Department of Justice
  • France - Bureau de l'Entraide judiciaire internationale à la direction des affaires civiles
  • Great Britian - The Office of the Lord Chancellor
  • Mexico - Secretary of External Relations
  • South Africa - The Chief Family Advocate
  • United States of America - The National Center for Missing and Exploited Children

The Convention only applies to children who are under the age of 16. The thinking behind this is that a person having reached the age of 16 is sufficiently mature to make its own decisions as to where he or she wishes to live. Interestingly, the Convention also provides for the consideration of a child's views as to a Convention application, where the child is sufficiently mature (but not yet 16).

The Convention addresses the issue of extended access or visitation, as opposed to an actual abduction and establishment of a new habitual residence for the child.

Practice advice: do not delay in making a Convention application were circumstances warrant. Any delay could be fatal as it might be interpreted by the domestic or other abductor's jurisdiction as implied consent to the child's relocation.

The Convention has prompted the development of a standard complaint or application form which any person seeking relief under the Convention must provide to its relevant central authority for transmission to the alleged abductor's jurisdiction. That Hague Convention application form must demonstrate a prima facie case of wrongful removal or retention and would normally include:

  • Information on applicant's party's identity, the identity and date of birth of the child and the identity of the person alleged to have abducted the child;
  • All available information concerning the whereabouts of the child and the abductor;
  • A statement of the factual or legal grounds setting out the innocent party's right to have the child returned and all known circumstances of the alleged wrongful removal or retention of the child or proving that the applicant's custody rights existed or a breach thereof;
  • A proposal for return travel details re the child in the event of a successful hearing in the abductor's jurisdiction;
  • All supporting documents, such marriage, divorce or custody documents, judgments or agreement relevant to custody or access rights; and
  • A statement giving the foreign central authority the right to act on the applicant or "innocent" party's behalf.

The second step is for the central authority to send the Hague Convention application to its peer agency (central authority) in the other signatory's country.

The third step is for a hearing to be convened in front of a judge and the abductor's jurisdiction to consider the incoming Hague Convention application and to consider whether the child had been wrongfully removed. If so, the judge ought to order the return of the child to the applicant.

The determination as to whether or not a child has been "wrongfully removed" is based on the law of the child's habitual residence as for the removal. This is a significant part of the Convention as it removes from the abductor's arsenal the advantage of jurisdiction-shopping.

According to Article 3 of the Convention, removal or retention is "wrongful" where:

"It is in breach of rights of custody attributed to a person or 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 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...."

As an American Court recently stated (Re Cabrera, see below):

"The underlying premise of the Hague Convention is that a child's country of habitual residence is the place where decisions relating to custody and access are best decided."

Many jurisdictions issue joint custody orders and some parents may have the mistaken impression that this gives them the right to relocate to another country without the consent of the other joint custodial parent. This is not so.

The Hague Convention encourages signatories to give urgent status to these hearings, for obvious reasons. However, they are usually subject to appeals so if the abductor has financial resources, very real problems can occur in spite of the Convention such as efflux of time and the loss to the other parent of irreplaceable custody rights.

There is no requirement that a Hague Convention applicant travel to the abductor's jurisdiction for the hearing but it is usually recommended as the alleged abductor has a number of defences she or he can raise (such as delay). The applicant can avoid delay by responding on-location.

The court in the abductor's jurisdiction has the option of remitting the matter back to the applicant's jurisdiction for an opinion on a relevant issues such as more information as to the wrongfulness of the removal.

The abductor's Court may also decline to order the return of the child if it determines (Article 13) 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."

Too see how the Convention works, consider the 2004 case of Mr. Julio Cabrera. He filed a Hague Convention application in his native Argentina when he discovered that his wife had absconded with their 10-year old daughter Ailin to the United States, finding employment and registering the child in school, all without the knowledge or consent of Mr. Cabrera.

Mr. Cabrera had signed an agreement allowing the child to travel to the United States for a period of up to a year, but not to establish habitual residence there. In fact, the wife told immigration officers that she was in the United States only as a tourist. The wife alleged that the plan had always been for the father to join them in the United States. For a two-month period in 2002, both the wife and daughter were inaccessible to Mr. Cabrera.

Justice Dimitrouleas of the United States District Court (Florida) ordered the return of little Ailin to Argentina "within ten days" adding:

"In the instant case, it is undisputed that the child's habitual residence prior to visiting the United States was Argentina.

"The child was born and raised in Argentina, attended school in Argentina, and has a majority of her extended family in Argentina.

"Although the child has now spent some time in the United States, the Court will not find that her habitual residence has been changed solely because of the unilateral actions of her mother. The child's father consented to her visiting the United States but did not consent to her residing here permanently. Therefore, there was no mutual shared intent for the child to remain in the United States.

"Further, considering the child's current immigration status and the fact that she has moved approximately five times in the mere two and one-half years spent here, it is difficult to find that the child has any settled purpose whatsoever.

"The Court finds that the child's habitual residence prior to the alleged wrongful retention was Argentina."

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