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International Child Abduction: Court Considerations & Preventative Measures

International Child Abduction is when a parent (who does not have the legal right to do so) removes the child to another country without an applicable defense.

The Hague Convention was created to provide children with protection against the negative effects of abducting a child across international borders. It aims to facilitate the quick return of children to the country of habitual residence, not to petition custody of the child.

What Countries are Covered by the Hague Convention?

About 93 countries have already implemented the Hague Convention such as Australia, France, Luxembourg, Spain, UK, Switzerland, and Spain. The U.S. officially became a member country on July 1, 1988.

The Convention will only apply to abductions that occurred after the country has joined the treaty. The complete list countries that are members of the convention can be obtained from the website of the HCCH.

What Type of Abduction Cases Can be Covered by the Hague Convention?

The Hague Convention cannot be applied to all international parental child abduction cases. For you to be able to appeal for the return of a child using the provisions of the Convention, you must be able to prove that:

  • The child is a habitual resident of a member country and has been wrongfully removed or retained to another member country. Habitual residence is the place where the day-to-day life of a child has been centered prior to their move.
  • The countries involved must already be members by the time that the abduction occurred. A country must formally accept the agreement of another country to the Convention before a treaty partnership is developed.
  • The child must be less than 16 years old during the time of application to be considered.

When is the Removal of a Child to Another Country Considered Wrongful?

  • The retention or removal of a child is deemed to be wrongful if:
    The rights of custody given to a person, institution or any other entity was breached according to the law of the country where the child is a habitual resident. Some examples of rights of custody include the right to choose the child’s location of residence and those that are related to the care being given to the child. These rights are oftentimes specifically described in another Court order.
  • The rights of custody were being implemented up until the removal or retention occurred.
  • A parent relocates the child to another country with no intention of returning (absent consent).
  • A parent does not permit the child to return home after taking a vacation in another country (absent consent).

A “Member Country” is not Obliged to Return a child in Every Case

According to The Hague Convention, a country may refuse the return of an abducted child if one of the following conditions are met:

  • A grave risk exists wherein the child might be subjected to psychological or physical harm, or the child’s return to his/her country of habitual residence may place him/her in an unbearable situation.
  • The child refuses to return to his country of habitual residence, and has already reached the age and extent of maturity wherein the court may take his/her opinion(s) into consideration.
  • The return of the child will violate the human rights and freedom of the country where the child is currently retained.

Don’t be Late, Time is of the Essence

Submission of a Hague application must be done immediately after the abduction or after the wrongful retention has occurred or it is not deemed to be timely. If you allow more than a year to pass before you decide to submit a Hague application, the return of your child may become much more difficult and may impact the outcome of your case.

The court may still allow the return of the child if it deems it to be appropriate even if the child has already adjusted to his/her new environment and the one-year limit has already been exceeded.

Note: Possession of a custody order before submitting an application is not required.

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