International Child Abduction: Court Considerations & Preventative Measures

International Child Abduction: Court Considerations & Preventative Measures

International Child Abduction: Court Considerations & Preventative MeasuresInternational Child Abduction

International parental child abduction occurs when a parent removes a child from their habitual country in violation of another parents custodial rights. The Hague Convention was created to provide children with protection against abduction across international borders. It aims to facilitate the quick return of children to the country of habitual residence.

 

What Countries are Covered by the Hague Convention?

About 100 countries recognize the Hague Convention including Australia, France, Luxembourg, Spain, the United Kingdom, and Switzerland. The U.S. officially became a member country on July 1, 1988. The Convention applies only to abductions that occurred after a country has joined the treaty. The complete list of member nations can be obtained from the website of the HCCH.

What Type of Abduction Cases are Covered by the Hague Convention?

The Hague Convention does not apply to all international parental child abduction cases. In order to appeal for the return of a child under the Convention, one 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 in which the day-to-day life of a child occurred prior to relocation.
  • The countries involved must already be members at the time of abduction. 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:

  • 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).
  • 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.

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.

Time is of the Essence

Submission of Hague applications must be done immediately after the abduction or wrongful retention. A court may still allow the return of a child even if the child has already adjusted to his/her new environment and a one-year limit has been exceeded. However, if one allows more than a year to elapse before submitting a Hague Application, the return of a child becomes increasingly challenging. 

Learn more about child custody and possession on our blog.