CARI has carried out numerous recoveries in China over the years since we started helping victim parents, with the most recent being a negotiation with an abductor for the return of a child abducted from US. Results of children being returned to their habitual residence through the legal system, after being abducted to China is depressing and basically impossible. China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau). Nor are there any signs that China is about to join the Convention or is even considering doing so.
What is also extremely concerning but not surprising to CARI is all of our clients we have worked for to assist in recovering their children home from China have said their governments basically wished them luck and pass on local inexperienced lawyers from a list of lawyer on their embassies register in China. As disgusting as it sounds, this is the norm from embassies………..
There are no international or bilateral treaties in force between China and most countries dealing with international parental child abduction. Furthermore it is unusual for foreign court orders to be recognized in China and that is most especially so when it comes to foreign child custody orders. Chinese law requires the existence of a treaty or de facto reciprocity in order to enforce a foreign judgment; neither exists between the United States and China.
China also has an enormous problem of domestic child abduction and child trafficking, with numerous articles on the topic printed even in the communist party newspaper, China Daily. This is another issue CARI’s human trafficking team (Project Rescue Children) has been asked to assist in with one local charity in China……
Dual nationality is not recognized under Chinese law. Some U.S. citizens who are also Chinese nationals (mostly U.S.-born children of Chinese nationals or legal permanent Permanent Residents) have experienced difficulty entering and departing China on U.S. passports. In some cases, such dual nationals are required to use Chinese travel documents to depart China. Normally this causes inconvenience but no significant problems for affected persons; however, in child custody disputes, the ability of dual national children to depart from China could be affected.
Generally, children who are Chinese nationals according to Chinese law are not permitted to depart China if one parent refuses to allow the travel requested by one parent, even if that parent is considered an abducting parent by another countries court. In those cases, children abducted to China are only permitted to return to their habitual residence if both parents agree to their return, or if a Chinese court upholds a foreign Court’s decision to allow the left-behind parent sole custody.
All of this means that U.S. and other countries courts should be most reluctant to sanction trips to China by dual national children accompanied by a Chinese national parent if the other parent raises genuine and well-founded fears that the child may not be returned.
ENFORCEMENT OF FOREIGN JUDGMENTS: Custody orders and judgments of foreign courts are not enforceable in China. Such judgements must be presented to a Chinese court for that courts consideration and decision. In China, there is a limited process to appeal a lower court’s decision.
DUAL NATIONALITY: Dual nationality is not recognized under Chinese law.
Finally, China has an effective exit control – which is usually a good thing since it can prevent child abduction — but children with Chinese passports, including dual national children, are reportedly barred from leaving China without the consent of both parents. Since that requires the consent of the allegedly abducting parent, the left-behind parent’s opportunity for self-help may be denied. The Chinese Government’s view on most Western countries does not help a foreigner trying to get their abducted child home……
Most enquiries for assistance within China come to CARI from the U.S. and Australia victim parents. You can forget about getting any assistance from your countries embassy or government when it comes to China!
A small tip if your child has been abducted to China, contact CARI before you contact the Chinese authorities!!
CARI’s experience dealing with China in relation to International Parental Child Abduction shows that you will have less than a 1% chance of having your child returned home through the Chinese Courts………..
DISCLAIMER: The information provided here is intended to give basic legal information. You should get legal assistance from a licensed attorney at law while conducting legal transactions and not rely solely on the information in this article.