Hague Convention on the Civil Aspects of International Child Abduction

Hague Abduction Convention
Convention on the Civil Aspects of International Child Abduction

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State parties to the convention
  states that signed and ratified the convention)
  states that acceded to the convention
  state that ratified, but convention has not entered into force
Signed 25 October 1980
Location The Netherlands
Effective 1 December 1983[1]
Parties 94 (March 2016)[1]
Depositary Ministry of Foreign Affairs of the Kingdom of the Netherlands
Languages French and English
Convention on the Civil Aspects of International Child Abduction at Wikisource

The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.

The Convention was concluded 25 October 1980 and entered into force between the signatories on 1 December 1983. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.[2]

The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

As of March 2016, 94 states are party to the convention.[1] In 2016, Philippines acceded to the convention[1]

Procedural nature

The Convention does not alter any substantive rights. The Convention requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member country rather than specifically to the left-behind parent.

The Convention requires the return of a child who was a “habitual resident” in a contracting party immediately before an action that constitutes a breach of custody or access rights.[3] The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.[4]

Wrongful removal or retention

The Convention provides that the removal or retention of a child is “wrongful” whenever:

"a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

"b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.[5]

"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."[6]

Habitual residence

The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.[7]

Special rules of evidence

The Convention provides special rules for admission and consideration of evidence independent of the evidentiary standards set by any member nation. Article 30 provides that the Application for Assistance, as well as any documents attached to that application or submitted to or by the Central Authority are admissible in any proceeding for a child's return.[8] The Convention also provides that no member nation can require legalization or other similar formality of the underlying documents in context of a Convention proceeding.[9] Furthermore, the court in which a Convention action is proceeding shall “take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable" when determining whether there is a wrongful removal or retention under the Convention.[10]

Limited defenses to return

The Convention limits the defenses against return of a wrongfully removed or retained child. To defend against the return of the child, the defendant must establish to the degree required by the applicable standard of proof (generally determined by the lex fori, i.e. the law of the state where the court is located):

(a) that Petitioner was not “actually exercising custody rights at the time of the removal or retention” under Article 13; or

(b) that Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or

(c) that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or

(d) that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or

(e) that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b); or

(f) that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.

Non-compliance

2016 US Annual Report on International Parental Child Abduction

Noncompliance with the terms and spirit of the Hague Convention has been a particularly difficult problem in the practical implementation of the Convention. In 2014, the United States declared Brazil, Mexico, Romania, and Ukraine as "Countries with Enforcement Concerns."[11] Additional countries are listed and reference to the most recent report should be made by concerned parties.

The Cuellar Versus Joyce case[12] was an example of the difficulties facing left behind parents applying to the US Central Authority.

The U.S. Department of State has primary responsibility over incoming Hague Convention abduction cases since April 2008; however, the National Missing and Exploited Children organization provides technical assistance and resources to parents, attorneys, judges and law enforcement officials involved in incoming Hague Convention case.

The case of Sean Goldman, a four-year-old boy abducted to Brazil, gained widespread media attention after the abducting mother died during the birth of another child. The mother's family, resident in Brazil, fought Sean's American father in Brazilian court to gain custody over Sean and keep him in the country. Ultimately, though, the Brazilian Supreme Federal Tribunal decided the case constituted child abduction under the terms of the Hague Convention, and had Sean sent back to America to live with his father.

Interpretation of article 13b: no return in case of "grave risks"

The principal purpose of the Abduction Convention is to cause the prompt return of a child to his or her "habitual residence." In certain exceptional cases under Article 13b, the court's mandatory return obligation is changed to a discretionary obligation, specifically, "the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that 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." The duty to return a child is however not abrogated by a finding under Art. 13(b) but merely changes from mandatory to discretionary.

In the primary source of interpretation for the Convention, the Explanatory Report, Professor E. Perez–Vera noted the following:

"it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them—those of the child's habitual residence—are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."

State parties

signature and ratification of Japan in 2014
Table of contracting states as of 2015 with date of entry into force
State Date of entry into force   State Date of entry into force   State Date of entry into force
Albania 1 August 2007   Gabon 1 March 2011   Peru 1 August 2001
    Philippines 1 April 2016
Andorra 1 July 2011   Georgia 1 October 1997   Poland 1 November 1992
Argentina 1 June 1991   Germany 1 December 1990   Portugal 1 December 1983
Armenia 1 June 2007   Greece 1 June 1993   Romania 1 February 1993
Australia 1 January 1987   Guatemala 1 May 2002   Russian Federation 1 October 2011
Austria 1 October 1988   Guinea 1 February 2012  Saint Kitts and Nevis 1 August 1994
Bahamas 1 January 1994   Honduras 1 March 1994   San Marino 1 March 2007
Belarus 1 April 1998   Hungary 1 July 1986   Serbia 27 April 1992
Belgium 1 May 1999   Iceland 1 November 1996   Seychelles 1 August 2008
  Iraq 1 June 2014  
Belize 1 September 1989   Ireland 1 October 1991   Singapore 1 March 2011
Bosnia and Herzegovina 6 March 1992   Israel 1 December 1991   Slovakia 1 February 2001
Brazil 1 January 2000   Italy 1 May 1995   Slovenia 1 June 1994
  Japan 1 April 2014  
Bulgaria 1 August 2003   Korea, Republic of 1 March 2013  South Africa 1 October 1997
Burkina Faso 1 August 1992   Latvia 1 February 2002   Spain 1 September 1987
Canada 1 December 1983   Lesotho 1 September 2012  Sri Lanka 1 December 2001
Chile 1 May 1994   Lithuania 1 September 2002   Sweden 1 June 1989
China, People's Republic of (Hong-Kong & Macao only, by continuation of UK & Portugal)   Luxembourg 1 January 1987   Switzerland 1 January 1984
Colombia 1 March 1996   Malta 1 January 2000   Thailand 1 November 2002
Costa Rica 1 February 1999   Mauritius 1 June 1993   The Republic of Macedonia 1 December 1991
Croatia 1 December 1991   Mexico 1 September 1991   Trinidad and Tobago 1 September 2000
Cyprus 1 February 1995   Moldova, Republic of 1 July 1998   Turkey 1 August 2000
Czech Republic 1 March 1998   Monaco 1 February 1993   Turkmenistan 1 March 1998
Denmark 1 July 1991   Montenegro 3 June 2006   Ukraine 1 September 2006
Dominican Republic 1 November 2004   Morocco 1 June 2010   United Kingdom of Great Britain and Northern Ireland 1 August 1986
Ecuador 1 April 1992   Netherlands 1 September 1990   United States of America 1 July 1988
El Salvador 1 May 2001   New Zealand 1 August 1991   Uruguay 1 February 2000
Estonia 1 July 2001   Nicaragua 1 March 2001   Uzbekistan 1 August 1999
Fiji 1 June 1999   Norway 1 April 1989   Venezuela 1 January 1997
Finland 1 August 1994   Panama 1 May 1994   Zambia 1 November 2015
France 1 December 1983   Paraguay 1 August 1998   Zimbabwe 1 July 1995

See also

Footnotes

  1. 1 2 3 4 "Status table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction". Hague Conference on Private International Law. 14 June 2011. Retrieved 19 July 2011.
  2. ↑ Hague Convention, Preamble.
  3. ↑ Hague Convention, Article 4.
  4. ↑ Hague Convention, Article 11.
  5. ↑ Hague Convention, Article 3.
  6. ↑ Elisa Perez–Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ("Explanatory Report"), 71, at 447–48
  7. ↑ Mozes v. Mozes, 239 F.3d 1067, 1073 (US 9th Cir. 2001) Case details on the INCADAT website
  8. ↑ Hague Convention, Article 30
  9. ↑ Hague Convention, Article 23.
  10. ↑ Hague Convention, Article 14
  11. ↑ http://travel.state.gov/content/dam/childabduction/complianceReports/2014.pdf
  12. ↑ see Cuellar v Joyce, --- F.3d ----, 2010 WL 624886 (9th Cir.(Mont.)
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