Hague Convention Abduction IssuesOne Possible Solution – The Hague Convention
One of the most difficult and frustrating elements for a parent of a child abducted abroad is that United States laws and court orders are not automatically recognized abroad and therefore are not directly enforceable abroad. Each country has jurisdiction within its own territory and over people present within its borders. No country can tell another country how to decide cases or enforce laws. Just as foreign court orders are not automatically enforceable in the United States, United States court orders are not automatically enforceable abroad.
At the Hague Conference on Private International Law in 1976, 23 nations agreed to draft a treaty to deter international child abduction. Between 1976 and 1980, the United States was a major force in preparing and negotiating the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or the Convention). The Convention was incorporated into U.S. law and came into force for the United States on July 1, 1988. As of July 2001, the Convention is in force between the United States and 50 other countries. The Convention applies to wrongful removals or retentions that occurred on or after the date the treaty came into force between those two countries. The dates vary for each country and more countries are considering signing on to the Convention all the time. Check the most recent list prepared by the Office of Children's Issues to learn whether the Convention was in force in a particular county at the time of the wrongful removal or retention.
You can find the list here
What Is Covered by the Convention
The Hague Convention is a civil legal mechanism available to parents seeking the return of, or access to, their child. As a civil law mechanism, the parents, not the governments, are parties to the legal action.
The countries that are party to the Convention have agreed that a child who is habitually resident in one party country, and who has been removed to or retained in another party country in violation of the left-behind parent's custodial rights, shall be promptly returned to the country of habitual residence. The Convention can also help parents exercise visitation rights abroad.
There is a treaty obligation to return an abducted child below the age of 16 if application is made within one year from the date of the wrongful removal or retention, unless one of the exceptions to return apply. If the application for return is made after one year, the court may use its discretion to decide that the child has become resettled in his or her new country and refuse return of the child. In any case, a court may refuse to order a child returned if there is:
A grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;
If the child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child's views (the treaty does not establish at what age children reach this level of maturity: that age and the degree of weight given to children's views varies from country to country); or
If the return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.
Note: Interpretation of these exceptions varies from country to country.
How to Use the Hague Convention
The Convention provides a legal mechanism for you to seek return of your child or exercise your visitation rights. You do not need to have a custody decree to use the Convention. However, to apply for the return of your child, you must have had and been actually exercising a"right of custody" at the time of the abduction, and you must not have given permission for the child to be removed or, in the case of a retention, to be retained beyond a specified, agreed-upon period of time. The Convention defines"rights of custody" as including"rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." This right need not be sole custody. If there was no court order in effect at the date of the abduction, these"rights of custody" may be established by the law in the state in which your child was living before his or her removal. In some cases it may be advisable to get a determination (as per Article 15 of the Convention) in your local court that 1) you have a right of custody to your child, and 2) the removal or retention was wrongful. Use of the Convention is not restricted to U.S. citizens.
An application should be submitted as soon as possible after an abduction or wrongful retention has taken place. As stated above, there is a time factor of one year involved. Do not wait until you get a custody order. That order would be irrelevant anyway.
Each country that is party to the Convention has designated a Central Authority to carry out specialized duties under the Convention. The Central Authority for the United States is the Department of State's Office of Children's Issues (CA/OCS/CI). You may submit your application directly to the Central Authority or foreign court of the country where the child is believed to be held, but, in order to ensure that you receive all available assistance it is best to submit your application to the U.S. Central Authority.
The Role of the United States Central Authority
The responsibilities of the Central Authority for the Hague Abduction Convention are set forth in Articles 7-12 and 21 of the Convention. The United States Central Authority is prohibited from acting as an agent or attorney in legal proceedings arising under the Convention. The United States Central Authority was not intended to be and has never been a party to such proceedings.
Although article 7(f) of the Convention and 22 C.F.R. 94.6(d) and (h) refer to legal proceedings under the Convention, they do not assign the U.S. Central Authority a direct role in such proceedings.
2 22 C.F.R. 94.4
The United States Central Authority's role in proceedings in the United States under the Convention is that of an active facilitator. We seek to promote cooperation among the relevant parties and institutions and act as a source of information about proper procedures under the Convention and the contents and status of applications for assistance. The Central Authority in the country where your child is located, however, has the primary responsibility for processing your application.
The Office of Children's Issues will review your application to ensure that it is complete and that your request complies with the requirements of the Convention. If it does, we will forward it to the foreign Central Authority and work with that authority until your case is resolved. If the abducting parent does not voluntarily agree to the return of your child, you may be required to retain an attorney abroad to present your case under the Hague Convention to the foreign court. If you need to retain an attorney abroad, see Using the Civil Justice System.
The Office of Children's Issues works with the applicant and the other Central Authority to facilitate communication between the parties involved and work toward resolving the case as quickly as possible. While specific operations and procedures under the Convention differ in each country party to the treaty, we stand ready to help applicants understand the process and monitor all cases in which assistance is sought.
Immigration and the Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction focuses on issues of residency, not citizenship. It is important to note that the Convention does not confer any immigration benefit. Anyone seeking to enter the United States who is not a United States citizen must fulfill the appropriate entry requirements, even if that person was ordered by a court to return to the United States. This applies to children and parents involved in any child abduction case including a Hague Convention case.
When a taking parent in a Hague Abduction Convention case is ineligible to enter the United States under United States immigration laws, the parent may be paroled for a limited time into the United States through the use of a Significant Public Benefit Parole in order to participate in custody or other related proceedings in a United States court.
Good News for Applicants Under the Hague Convention
The Hague Convention on International Child Abduction has improved the likelihood and speed of return of abducted or wrongfully retained children from countries that are party to the Convention. The Convention's success is encouraging more countries to become party to the Convention. As of July 2001, fifty-five countries have joined since the United States became the 10th country in July 1988. In addition, the reputation of the Hague Convention is such that, when an abducting or retaining parent learns that a Hague application has been or will be filed, he or she may return the child voluntarily and no further civil action will be taken. The majority of Hague cases still, however, require the left behind parent to retain an attorney in the country where the child is located and petition the court for return.
A note of caution: Criminal charges may have an unintended negative effect on the operation of the Hague Convention. With the Hague Convention, the emphasis is on the swift return of a child to his or her place of habitual residence where the custody dispute can then be resolved, if necessary, in the courts of that jurisdiction. Courts in some countries, including the United States, have denied return of children solely because the taking parent would be arrested if they accompanied the child home. Many of these courts, United States and foreign, have held that the arrest of the parent would expose the child to psychological harm under Article 13(b) of the Convention. This varies by country and the type of criminal charge. Please contact CI to discuss this matter further.
Children Abducted to the United States
The Hague Convention applies to children abducted to and from countries party to the Convention. If a child is abducted to the United States from one of our Hague treaty partners the parent left behind in the country may apply for return under the Convention. Even if the child was born in the United States, if the child is now found to be"habitually resident" in another country the child may be ordered to return to that country under the Convention. the U.S., provided the case meets the requirements of the Hague and the child's country of habitual residence is a signatory to the Hague Convention.
As of September 5, 1995, by agreement between the National Center for Missing and Exploited Children (NCMEC), the Department of State, and the Department of Justice, applications seeking return of or access to children in the United States are processed on behalf of the Office of Children's Issues by the NCMEC.
(See References)
More information on the Hague Convention:
· Legal Solutions When the Hague Convention Does not Apply
· Text of the Hague Convention on Civil Aspects of International Child Abduction
· 2004 Report on Hague Compliance on the Civil Aspects of International Child Abduction, Attachment A and Attachment B
· 2003 Report to Congress on International Child Abductions and Attachment A - Open Abduction Cases by Country
· 2002 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction
· 2001 Report on Compliance and Attachment A: List of Number of Applications for the Return of Children Submitted by United States Citizens to the Central Authority for the United States That Remain Unresolved More Than 18 Months After the Date of Filing
· 2000 Report on Compliance and Attachment A: List of Number of Applications for the Return of Children Submitted by United States Citizens to the Central Authority for the United States That Remain Unresolved More Than 18 Months After the Date of Filing
· 1999 Report on Compliance with the Hague Convention
· Questionnaire for Non-Hague Convention Parents
· Instructions for Completing the Hague Convention Application
· List of Hague Convention Signatory Countries
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