Basics on The Hague Convention
One of many main hurdles left behind parents are faced with before, during and after their children have been abducted to a foreign country is information. Well to be specific, the ‘lack of information’. As CARI – Child Abduction Recovery International deal with many clients from many countries we have put together something basic for left behind parents. We strongly advise to stay clear of the many ‘Parental Child Abduction’ social media sites set up to give advise, which can be incorrect or to scam you financially.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty which seeks to protect children from the harmful effects of abduction or retention across international boundaries by providing a procedure to bring about their prompt return to their home country of “habitual residence”.
What parents must understand is that The Hague Convention is not concerned with the merits of a custody case. Criticisms or complaints about the custodial parent, or the terms of a custody award, are matters to be dealt with by the jurisdiction of the child’s habitual residence. Save in exceptional circumstances, the Convention is based on the assumption that it is in the child’s best interests to be returned quickly. This ensures that the abducting parent cannot profit from the abduction or retention by choosing one jurisdiction over another in the hope of reversing previous custody decisions. The Convention also seeks to secure protection for rights of access
Hague cases are not child custody cases
The Hague Convention does not provide for the litigation of custody matters as part of the Hague application. The Convention anticipates the issues of abduction and custody will be dealt with separately, and particularly, it is anticipated that the courts of the child’s habitual residence country will litigate custody – related issues.
Should I try to have my child returned voluntarily?
Having your child returned to you voluntarily can save long and costly legal cases. CARI encourage, where appropriate, parents to keep trying to reach an agreement with the person who has abducted their child, even if the parent has already made a formal application to a Central Authority. Your application will continue to progress while you are having these discussions.
However, you should be aware of the time these discussions take! The longer a child lives in a new country, the more difficult it may be to get an order to have them returned. Your child may have become settled in the other country. In this case, a court may decide that the child should not be returned even though they were abducted from a Hague Convention country. Remember also that the abducting parent WÌLL be getting legal advice in their home country before and or during the abduction to combat you trying to return your child.
You should also be careful about any agreement that your child can remain with the other parent subject to certain conditions. Agreeing that your child can stay in the other country may mean that the child acquires that country as their country of habitual residence. Once you agree to your child living in their new country, you cannot apply for their return under the Hague Convention—even if the other parent does not comply with conditions you may have agreed to – such as access or contact arrangements.
You should also be aware of any other actions or agreements that may lead to a court finding that you have acquiesced (If someone ‘acquiesces’ to something, they consent to it or allow it to happen) to the child remaining in the new country.
CARI recommend that ‘left-behind’ parents, engaging in negotiation or mediation with the person who has abducted their child, seek private ‘experienced’ legal advice to assist them in their discussions.This is also something CARI has assisted in with some clients.
How long will it take to get my child back?
This is the million dollar question that is on the mind of every left-behind parent. The truth is no one knows. The Hague states children must be returned within 6 weeks of the process starting but we can honestly say, that never happens. We have known cases to go on for years. There is no definitive timeframe for a Hague case. Each application must be reviewed on its own merits, and each foreign country has its own processes, procedures and timeframes. The length of time will depend on factors such as whether a voluntary return occurs, whether the application proceeds to court, and whether the decision is appealed. But the main reason is when the abducting parent goes on the run and into hiding like fugitives trying to avoid authorities and CARI.
When might the other country not return my child?
A court in the other country may refuse to return the child if:
- it is not convinced that the key requirements of the convention have been met
- it determines that you (the applicant) had agreed to the child being taken or kept in that country, or subsequently acquiesced (see below) to the removal or retention
- the child has been in that country for more than twelve months and is settled there
- the child objects to being returned and is old enough and mature enough for their opinion to be considered
- returning the child would expose them to a grave risk of physical or psychological harm, or some other intolerable situation, or
- returning the child would breach their fundamental freedoms and human rights.
Non-Compliant Hague Countries
Remember just because a country is a party to the Hague Convention does not mean that it will effectively enforce its treaty obligations and to be honest enforcement is rare. This is the number one problem CARI has found over the years dealing with our clients. For example, the U.S. State Department has asserted that Mexico is “non-compliant” with the terms of the Convention. U.S State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, 2004. Mexico’s noncompliance results from the following problems:
Most importantly the burden of finding an abducted child in Mexico is left entirely to the left-behind parent. Mexican authorities provide no effective help and if the child cannot be located, nothing happens. This is also true in most countries whether part of the Hague Convention or not.
- The Mexican Central Authority does not have adequate resources to perform its functions under the Convention.
- Mexico has not enacted any legislation to implement the Hague Convention, which has not been integrated into the Mexican legal system.
- The Mexican Central Authority has no law enforcement powers and Mexican law enforcement agencies make no serious efforts to locate parentally abducted children.
- There is an apparent lack of understanding of the Convention among the judiciary in Mexico.
- The “amparo” (a special appeal in Mexico claiming a violation of constitutional rights) is used by taking parents to block Hague proceedings indefinitely.
- Mexican courts are able to reconsider the facts of a Hague at any stage of the proceeding, which allows proceedings to be prolonged substantially.
Accordingly, custody orders concerning parents with strong ties to Mexico must be drafted so as to minimize the risk that the child will be taken to that country. It would be reckless to permit a Mexican parent who has expressed a desire to move to Mexico, and who has strong family or business ties to Mexico, to take a child into that country for a visit, regardless of the conditions that may be imposed to encourage the parent to bring the child back to this country. Parents need to be educated through awareness that they should not be allowing their children to head off to a foreign country for ‘a holiday’ or ‘family visit’.
Similar concerns exist with respect to Austria, Colombia, Ecuador, Honduras, Japan, Mauritius, Peru, Poland, Turkey, Russia and Romania and, several other countries.
CARI’s experience dealing with #IPCA International Parental Child Abduction shows it is far better to prevent children being taken to such countries that do not fully respect their international treaty obligations than to attempt to procure their recovery after the fact. Abduction by retention (not returning children from a agreed holiday or family visit) in a foreign country is the number one way children are being abducted. Again we can not stress enough, DON’T let your child travel overseas alone.
If you have custody CARI can help return your children. We can guide you with honest advice through the mine field of different opinions floating around about what you can and can’t do.
CARI – Child Abduction Recovery International provides the above as information only. This blog is not a legal site. We advise parents to seek independent advise from ‘experienced’ legal representatives in your country.