The Hague Convention and International Child Abduction
October 1, 2008
Long known as the standard for the treatment of prisoners of war, The Hague Convention is also the international treaty that serves as the source of ongoing agreement between nations on other issues. One important aspect of the Hague Convention addresses international protocol in the event of a child abduction that crosses national boundaries. The United States ratified this element of The Hague Convention (HC) in 1981, but its provisions came into full effect on July 1, 1988 through enactment of the Federal legislation called the International Child Abduction Remedies Act.
The provisions of the HC accord require that signatory countries take all appropriate measures to carry out the objectives of the HC, and to use the most expedient procedures available in doing so. Whether through the provided administrative process designed to seek a voluntary return, or through legal action in the court system, countries must respond proactively and promptly in the appropriate return of an abducted child.
The HC, and any legal proceedings under it, are not intended to serve as a child custody case in the sense of determining what is in the child’s best interests. The objective of the HC, through its focus on an expedient return of the child, is to ensure the child is in the proper place for that determination to be made, as well as prevent the abducting parent from gaining an unfair advantage. The International Child Abduction Remedies Act provides that it and the HC “empower courts in the Untied States to determine only rights under the Convention, and not merits of any underlying child custody claims.”
Application of The HC segregates cases into two categories: outgoing cases and incoming cases. Outgoing cases are those in which a party here in the United States wants an abducted child to be returned from another country. Incoming cases are those in which the child was abducted from a foreign country and brought to the United States.
The parent whose child has been abducted obtains an application to seek the return of their child from the U.S. State Department. The applicant does not have to have a court order for custody to be able to seek relief under the HC. The completed application is submitted to what is called the “central authority.” Under the HC, each nation must designate its official central authority. Previously, the United States’ central authority was the National Center for Missing and Exploited Children, but in April 2008 this was changed to the State Department. The central authority does not charge for its services provided under the HC. The central authority may assist in obtaining pro bono legal counsel or a reduced-fee attorney, but will not pay for any legal fees or expenses incurred by the applicant.
The application is sent to the central authority in the country where the child is believed to be located. In the U.S., the State Department recommends sending all “outgoing” applications to their office first for a review to ensure compliance with the HC, and they in turn will send it on to the foreign central authority. Applications received by the State Department are assigned a case officer who can furnish information about the foreign country where the child was taken and the legal system there. While they may not act as legal counsel, a case officer can assist in finding a foreign attorney. The case officer works with the representatives from the foreign central authority toward obtaining a prompt and voluntary return of the child.
In “incoming” cases, the objective is to have the abducted child returned to the child’s foreign country of residence. The process starts the same as outgoing cases, with an application leading to the respective central authorities for the countries involved trying to work out voluntary return of the child.
If the efforts of the central authority fail to produce a voluntary return, then parents may resort to legal proceedings. In the U.S., legal proceedings for an “incoming” case can be filed in state or Federal court. If the court determines that a child was wrongfully removed to or retained in a country, then the court must order the immediate return of the child. Under the HC rules, to establish that the removal or retention was wrongful, the parent bringing the case must prove that the child was a habitual resident of the country where the parent wants the child returned, that the removal or retention was in breach of custody rights of that country’s law, and that the parent bringing the case was actually exercising those custody rights at the time of the removal or retention.
The HC recognizes that custody rights may arise by operation of law, by court decision, or agreement. The parent bringing the case must not only have custody rights but must be exercising them prior to the removal or retention. This will not typically prove to be a difficult hurdle, however, as under the HC, that person cannot have failed to exercise those custodial rights short of acts that constitute clear abandonment of the child.
Defenses in opposition to the child’s return are available, although limited. The defending parent can assert that the parent bringing the case consented to the removal or retention, or that the parent bringing the case was not actually exercising custody at the time of the removal or retention. They may also attempt to demonstrate that the child objects to the return, being relevant if the child is deemed by the court to be old enough and mature enough for the court to consider the child’s objection.
Failure to timely file a HC action may give rise to an additional defense — if the case is filed one year or more after the date of the wrongful removal or retention, a possible defense against the return of the child is to demonstrate that the child is now settled in their new environment. In addition, a defense may be argued on grounds of general public policy which provides that the return of the child may be refused if doing so would not be permitted by principles protecting human rights and fundamental freedom in the country where the child is located.
Should an instance of international child abduction occur, we recommend that qualified legal counsel be consulted to assist in taking action under the provisions of the Hague Convention and associated federal law.