Questions and Answers on the Hague Convention on the Civil Aspects of International Child Abduction

Q:What is the Hague Convention?A.The Hague Convention is a term used to cover a number of international treaties on different areas of the law, ranging from commercial issues, legal procedures and money judgments to international child abduction and adoption. There are many Conventions, each covering a different topic and having its own title. This Q&A publication is concerned with the Hague Convention on the Civil Aspects of International Child Abduction, first created October 25, 1980 and since ratified by the U.S. and many, but not all, countries.Q:What is the purpose of the Hague Convention on the Civil Aspects of International Child Abduction?A:The Hague Convention on the Civil Aspects of International Child Abduction is an attempt to deal with situations where a person has wrongfully taken a child(ren) from one country to another or keeps them in a country without the other parent’s permission or legal authority to do so. In other words, this Convention concerns wrongful removal/retention from the child’s state of habitual residence (country of residence). Q:What is the responsibility of each country that signed the Hague Convention on the Civil Aspects of International Child Abduction?A:Each signatory to the treaty agreed to set up a Central Authority to organize each case and act as a clearinghouse for international child abduction issues. For example, the United States Department of Justice was designated the U.S. Central Authority and, in turn, delegated much of that authority to the National Center for Missing and Exploited Children (NCMEC). Some countries signed on to the treaty but have not put much funding nor effort into implementation. Each government has a great deal of power over cases under the Hague Convention on the Civil Aspects of International Child Abduction once transferred within their borders. The referring country, of course, has no real authority at all and therefore one must rely on the individual government where the child has been taken to use that power. Often, a diligent attorney working on a child abduction case is the key to having a child returned. Q:What resources are available to the Central Authority?A:Each country is very different in the resources they apply to Hague cases, ranging from almost nothing to highly sophisticated and coordinated systems. In the U.S., for example, the United States relies on the National Center for Missing and Exploited Children to coordinate efforts among volunteer attorneys throughout the United States, Interpol, the FBI and also local police where abducted children are found. In addition, the National Center maintains contact with the requesting parent and their representatives.Q:How does a case under the Hague Convention on the Civil Aspects of International Child Abduction proceed?A.A party can go in one of at least two procedural directions to start a case. One, the party may independently find and retain an attorney in the jurisdiction where the child is found. The other method is for the party from whom the child was wrongfully removed may make a direct application to the Central Authority in either the child’s habitual country of residence or the country’s Central Authority in which the child is found to seek assistance. The Central Authority then coordinates with an attorney or other proper entities in the proper jurisdiction. Following this, the normal procedure is to have the attorney file paperwork with the local court requesting that the court (1) order local law enforcement or another entity to pick up the child, (2) set a hearing, and (3) order the child returned to the proper custodian and country. Once the child is secured, the court holds the hearing quickly thereafter to review the facts of the case and decide whether returning the child is proper. It is not necessary for the parent from whom the child is abducted to attend the hearing but it is often more convincing for them to testify in person there. Additionally, it is nice for that parent to be present because courts, when warranted, will normally order an immediate return following the hearing and it is often best for the parent to be there to comfort the child and accompany the child home.Q:How does the Hague Convention on the Civil Aspects of International Child Abduction relate to custody?A:The short answer is that it really does not relate to custody. One purpose of the Convention is to simply return children to their state of habitual residence so that a court there with proper jurisdiction can make the appropriate orders regarding the child. The court in the jurisdiction that a party is asking to order the return of a child is not making a custody decision at all; rather, it is just sending the child back to the child’s residence where the proper court can make further rulings. Following a child’s return, there is nothing in the Convention that prevents the proper court in the child’s state of habitual residence from thereafter giving one party or the other custody, visitation or even from allowing one party or the other to take the child out of the jurisdiction again (albeit this time with the proper court permission). Note that if custody proceedings are occurring in the country to which the child has been wrongfully removed/retained, those proceedings are to be put on hold until a decision under the Convention is made.Q:What are possible defenses to having a court order the return of a child?A:There are several possible defenses that may apply to a particular case, although the different courts in various countries have interpreted the Hague Convention on the Civil Aspects of International Child Abduction somewhat differently. Generally speaking, the Hague Convention allows the following defenses:1.the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;2.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; 3.the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views;4.The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.Q:Are there timeframes that apply under the Hague Convention on the Civil Aspects of International Child Abduction?A:A number of them, including:1.Children who have attained the age of 16 years are not covered by the Convention. 2.If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention.3.If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed –a court may choose not to return the child if there is evidence that the child is settled in his/her new environment.4.Courts should act quickly in such cases but if one has not reached a decision within six weeks from the date proceedings commenced, an applicant or the Central Authority of the requested State may officially request a reason for the delay.5.The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.6.Generally, the Convention requires that countries act without delay in child abduction cases that fall within its parameters.Phoenix office: 3030 N. Central Ave., Ste. 705 Phoenix, Arizona 85012 Ph: 602-631-9555 Fx: 602-631-4004Goodyear office: 1616 N. Litchfield Rd., Ste. 240 Goodyear, Arizona 85338 Ph: 623-344-7880 Fx: 602-631-4004Visit our website: www.wilcoxlegal.comCheck out our web log: www.arizonafamilylaw.blogspot.comDisclaimer: Wilcox & Wilcox, P.C. and its principles, agents and/or representatives, make no guarantees or representations as to the accuracy or currency of any information herein contained. Providing this brochure does not establish an attorney-client relationship. To create such relationship, both the attorney and potential client must sign a written fee agreement. This information is meant only as general information, may not apply to your case specifically and is not meant to be relied upon for purposes of taking legal action. You should contact an attorney in person for further and specific information. Our family law attorneys are licensed in Arizona only. Copyright © Wilcox & Wilcox, P.C. 2004