THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
The Hague Convention on the Civil Aspects of International Child Abduction
In recent years, there has been a dramatic rise in international child abductions. International child abductions have serious consequences for both the child and the left-behind parent. The child is removed, not only from contact with the other parent, but also from his or her home environment and transplanted to a culture with which he or she may have had no prior ties. International abductors move the child to another State with a different legal system, social structure, culture and, often, language. These differences, plus the physical distance generally involved, can make locating, recovering and returning internationally abducted children complex and problematic.
Fortunately, an international civil treaty, called The Hague Convention on the Civil Aspects of International Child Abduction, was established providing an expeditious method to return a child internationally abducted from one member nation to another. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence.
The following countries are all members of the Hague Abduction Convention:
Bosnia and Herzegovina
China (Hong Kong and Macau Special Administrative Regions only)
The Czech Republic
Denmark (except the Faroe Islands and Greenland)
Macedonia (known as Former Yugoslav Republic of Macedonia in UN and other international bodies)
Saint Kitts and Nevis
Trinidad and Tobago
The United Kingdom of Great Britain and Northern Ireland (including Isle of Man, Cayman Islands, Falkland Islands, Montserrat, Bermuda)
The United States of America
The Convention states that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a child”. These institutions shall use the most expeditious procedures available to them, and the final decision must be made within six weeks from the date of commencement of the proceedings. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, shall have the right to request a statement of the reasons for the delay.
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures to:
a) discover the whereabouts of a child who has been wrongfully removed or retained.
b) prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures.
c) secure the voluntary return of the child or to bring about an amicable resolution of the issue .
d) initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access.
e) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers.
f) provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child.
g) keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
h) ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.
The principal object of the Convention, aside from protecting rights of access, is to protect children, under 16 years of age, from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence. The principle of prompt return also serves as a deterrent to abductions and wrongful removals. The return order is designed to restore the status quo which existed before the wrongful removal or protection, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction.
The Convention defines 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.
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.
The Convention limits the defence used against the return of a wrongfully removed or retained child to the following reasons:
a) The Petitioner was not “actually exercising custody rights at the time of the removal or retention”
b) The Petitioner “had consented to or acquiesced in the removal or retention”
c) More than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings.
d) The child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection.
e) By clear and convincing evidence, that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,”
f) By clear and convincing evidence, that return of the child would subject the child to violation of basic human rights and fundamental freedoms.
A return order is not a custody determination. It is simply an order that the child be returned to the jurisdiction which is most appropriate to determine custody and access. It is clearly stated that a return decision is not a decision on the merits of any custody issue. It is this which justifies the requirement that the return order be made “forthwith”, and that a court dealing with an abduction case is not permitted to decide on “the merits of rights of custody”.
The Hague Convention on the Civil Aspects of International Child Abduction is bringing hope to those who face the tragedy of experiencing such an abduction. The common ground on which the members of the Convention operate has swiftly brought home thousands of children, whom may have never been located and brought home without it.
The Hague Convention speaks volumes to the shared feeling of protecting young children across the world from abduction. Many countries have come together to speak in a unified voice against these crimes. While there is still much to learn in regards to bettering the convention’s policies and procedures, the ground work that has already been laid is inspirational and encouraging, showing how humanity shares the desire to protect its children. When we speak in an unified voice against abduction, we are heard around the world, and from this, a true difference is being made.