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Hague Convention on the Civil Aspects of International Child Abduction: Difference between revisions

Revision as of 21:56, 6 November 2023

Hague Abduction Convention

Convention on the Civil Aspects of International Child Abduction
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 (1980-10-25)
Location	The Hague, Netherlands
Effective	1 December 1983[1]
Condition	3 ratifications
Parties	103 (November 2022)[1]
Depositary	Ministry of Foreign Affairs of the Kingdom of the Netherlands
Languages	French and English
Full text
Convention on the Civil Aspects of International Child AbductionatWikisource

The Hague Convention on the Civil Aspects of International Child AbductionorHague Abduction Convention is a multilateral treaty that provides an expeditious method to return a child who was wrongfully taken by a parent from one country to another country. In order for the Convention to apply, both countries (the one the child was removed from, and the one the child has been brought to) must be “Contracting States”, i.e. both must have adopted the Convention.^[2]

The Convention seeks to address "international child abduction" arising when a child is removed by one parent, when both parents having custody rights or custody has yet to be determined. It was drafted to ensure the prompt return of children wrongfully abducted from their country of habitual residence, or wrongfully retained in a country that is not their country of habitual residence.^[3]

The Convention was developed by the Hague Conference on Private International Law (HCCH). The convention was concluded 25 October 1980 and entered into force between the signatories on 1 December 1983.

As 2022, there are 103 parties to the convention; Botswana and Cape Verde being the last countries to accede, in 2022.^[4]

Aims and Scope of the Convention

The objectives of the Convention are set out in Article 1: to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and, to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.^[5]

The Convention is used when one parent (referred to as the "abducting parent") allegedly removed or retained the child in a State other than the State of habitual residence, either:

1. before a court in the State of habitual residence ruled on custody and access, or
2. after a court in the State of habitual residence ruled on custody and access and the wrongful removal or retention interfered with the custody or access rights that the other parent (referred to as the "left-behind parent") had under that order.

The Convention, by returning children to the State of habitual residence, deters parents from crossing international borders in search of a more sympathetic court (i.e. one who is more likely to rule on custody and access in their favour).

In order for a court to order the return of a child under Article 12 of the Convention,^[6] these conditions must be met:

1. the child was removed from their habitual residence;^[7]
2. the child is under the age of 16;^[8] and
3. the removal of the child was considered wrongful.^[9]

Even if the above conditions are met, the court might not order the return of the child because of the exceptions specified in Articles 12 and 13.

Procedural nature

The Convention does not alter any substantive rights of the parents. When an abduction occurs, the parent seeking the child's return will commence proceedings by making an application to the Central Authority. Each Contracting State is required to have a Central Authority to help facilitate the child's return.^[10]

• Depending on the Contracting State, the role of the Central Authority varies. For example, in Germany, the Central Authority will take the matter to court on behalf of the left-behind parent. In Canada and the United States, it is the left-behind parent who appears in court while the Central Authority acts as a liaison.^[11]

The Convention requires that no judicial or administrative authority in the State the child has been brought to shall decide the merits of custody or access until it has been determined that the child is not to be returned under the Convention.^[12]

A court in the State the child has been brought to should not consider the merits of the underlying custody or access dispute, but should determine only the country in which that dispute should be adjudicated.

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 children",^[13] and the institutions in each Contracting State "shall use the most expeditious procedures available" to ensure the prompt return specified in the Convention objectives.^[14]

• As a result of the articles on expeditiousness, most^{[citation needed]} Contracting States conduct hearings with only affidavit or written evidence, although oral evidence and cross examination are allowed if credibility is at issue,^[15] or if the affidavit evidence is conflicting.^[16] In Canada, Convention applications are "typically heard on affidavit evidence".^[17] The same is true in the United Kingdom,^[16] Finland,^[18] and South Africa.^[19] In the Netherlands however 2 hearings (as well as child interview if the child is above 6 years old) within 4 weeks take place in the latter of which presence of all parties is "highly desirable".^[20]

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.^[21]

Habitual residence must be assessed first because whether or not a parent had rights of custody is determined by the law of the place of habitual residence. (See, for example the U.S. case Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), where the court refused to accept a Spanish court's decision that the father did not have rights of custody. The Spanish courts never applied New Jersey law despite acknowledging that the child's place of habitual residence was New Jersey).

Habitual residence

An application for the return of a child can succeed only if a child was, immediately before the alleged removal or retention, habitually resident in the Contracting State to which return is sought.^[22] This means that a child, taken from State A to State B, will only be subject to a return order to State A if the court determines that the child’s habitual residence was State A at the time the child was taken.

The Convention does not define the term "habitual residence", so it is open to the courts in each Contracting State to do so. It is intended to be a fact-based determination, avoiding legal technicalities.^[23]

There are a few approaches to assessing habitual residence, depending on the court seized of the analysis.

1. The parental intention approach. Under this approach, the court looks for a shared intention on the part of the parents (when there has been a move and there is a dispute as to whether the parents intended for the child to retain the existing habitual residence or acquire a new one). the U.S. case Mozes v Mozes, 239 F.3d 1067 (9th Cir. 2001), has provided guidance on the parental intention approach. The jurisprudence in some U.S. States continues to treat shared parental intent as a decisive factor in the determination of a child's habitual residence. Under this analysis, a parent cannot unilaterally create a new habitual residence by wrongfully removing or retaining a child. The court must look at the shared intentions of the parties, the history of the child's location and the settled nature of the family prior to the facts giving rise to the request for return.^[24]
2. The child centred approach. This approach calls for the court to look towards the child, not the parents, and to examine past experiences of the child, not future intentions for residence.^[25] The court will consider the child’s connections with the State including their academic activities, social engagements, participation in sports, and meaningful connections with the people and places.^[26] This approach is used in some U.S. States,^[27] and in Germany.^[28]
3. The hybrid approach. Using the hybrid approach, the court does not look exclusively to parental intent or to the child’s acclimatization to a State, rather, the court looks at “all relevant considerations arising from the facts of the case at hand.”^[29] This approach is used in the UK,^[30] Canada,^[31] Israel,^[32] and again some U.S. States.^[33] The application judge determines the focal point of the child's life which is the family and social environment in which its life has developed, immediately prior to the removal or retention. The judge considers all relevant links and circumstances – the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B.^[34] The child must be physically present in that place and that presence cannot be temporary or intermittent.^[35] Other factors relevant to the determination of habitual residence include the duration, regularity, conditions and reasons for the child's stay in that State.^[36] When considering how much weight to place on the various considerations in the habitual residence analysis, a court will factor in a child's age. For very young children, more weight will be placed on the shared intent of the parents because a young child will not form meaningful connections with people and places, whereas the impact of parental intent is more limited for older children who are "capable of becoming "firmly rooted" in a new country".^[37]

Rights of custody

Rights of custody may arise by operation of law or from a judicial or administrative decision, or an agreement having legal effect under the law of the country of habitual residence.^[21] The explanatory report of the convention clarifies the meaning of wrongful as:

"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."^[38]

The Convention specifies that “rights of custody” includes rights relating to the care of the child and the right to determine the child’s place of residence, while “rights of access” includes the right to take the child for a period of time.^[39]

After assessing whether the parent had rights of custody or access according to the laws of the child's state of habitual residence, the court then determines whether or not those rights were “actually exercised”, making the removal or retention wrongful.

Article 15 of the Convention is designed to promote cooperation amongst Contracting States. It provides that a Contracting State may, prior to making an order for the return of the child, request a decision or determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention by that Contracting State’s law.^[40] The rationale behind Article 15 is that the foreign court is better placed to understand the meaning and effect of its own laws.^[41]

Most Contracting States take the position that an Article 15 determination should report only on matters of national law regarding rights of custody, and not to extend the analysis to classify the removal as wrongful, which is a question for the court requesting the Article 15 determination.^[42] An Article 15 determination from a Contracting State should be taken as conclusive to avoid further delays.^[41]

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.^[43] 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.^[44] Furthermore, the court in which a Convention action is proceeding "may 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.^[45]

Exceptions 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 3; 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, and the child has "settled in its new environment", under Article 12;

(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.

The best interests of the child plays a limited role in deciding an application made under the convention. In X v. Latvia,^[46] a Grand Chamber of the European Court of Human Rights decision noted by the 2017 Special Commission on the Practical Operation of the convention, the court stated that "the concept of the best interests of the child must be evaluated in light of the exceptions provided for by the Convention, which concerns the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a 'grave risk' (Article 13 (b)), and compliance with the fundamental principles of the requested State on the protection of human rights and fundamental freedoms (Article 20)."^[47]

Grave risks exception – Article 13(b)

InX v. Latvia,^[48] the Grand Chamber^{[clarification needed]} held that the parent who opposes the return of a child on the basis of Article 13(b) exception must adduce sufficient evidence of the existence of a risk that can be specifically described as "grave". Further, as held by the Grand Chamber, while Article 13(b) contemplates "grave risk" to entail not only "physical or psychological harm", but also "an intolerable situation", such situation does not include the inconveniences necessarily linked to the experience of return, but only situations which goes beyond what a child might reasonably bear.^[49]

State parties

As of November 2022, there are 103 parties to the Convention.^[4] The last states to accede to the convention were Botswana and Cape Verde in 2022.^[4]

Domestic legislation

Contracting states that have enacted domestic legislation to give effect to the Convention include:

Australia

• Reg. 16(3) Family Law (Child Abduction) Regulations 1989.^[50]

Canada

• Alberta: International Child Abduction Act, RSA 2000, c I-4.
• British Columbia: Family Law Act, SBC 2011, c 25, s 80.
• Manitoba: The Child Custody Enforcement Act, CCSM c C360.
• New Brunswick: International Child Abduction Act, RSNB 2011, c 175.
• Newfoundland and Labrador: Children's Law Act, RSNL 1990, c C-13, s 54.
• Northwest Territories: International Child Abduction Act, RSNWT 1988, c I-5.
• Nova Scotia: Child Abduction Act, RSNS 1989, c 67.
• Nunavut: International Child Abduction Act, RSNWT (Nu) 1988, c I-5.
• Ontario: Children's Law Reform Act, RSO 1990, c C.12.
• Prince Edward Island: Children's Law Act, RSPEI 1988, c C-6.1.
• Quebec: Act respecting the civil aspects of international and interprovincial child abduction, CQLR c A-23.01.
• Saskatchewan: The International Child Abduction Act, 1996, SS 1996, c I-10.11.
• Yukon: International Child Abduction (Hague Convention) Act, SY 2008, c 5.

United States of America

• International Child Abduction Remedies Act (ICARA),^[51] 22 U.S.C. § 9001 et seq. (formerly 42 U.S.C. § 11601 et seq.).
• International Child Abduction Prevention and Return Act (ICAPRA), 22 U.S.C. § 9101 et seq.^[52]

See also

• International child abduction
• Child abduction
• Child laundering
• Child harvesting
• List of international adoption scandals
• Hague Adoption Convention
• Hague Abduction Convention Compliance Reports (US)
• International Child Abduction Remedies Act (US)
• Hague Conference on Private International Law

References

External links

Wikimedia Commons has media related to Hague Abduction Convention.

• Full Text of the Convention
• Explanatory Report by Elisa Perez-Vera
• INCADAT – Case-law database of different jurisdictions concerning the 1980 Hague Child Abduction Convention
• US State Department International – Parental Child Abduction – Compliance Report 2011
• Contracting States
• The Child Abduction Section of the Hague Conference website
• Hague Conference Guides to good practice
• The Hague Domestic Violence Project International Child Abduction and Domestic Violence
• Multiple perspectives on the implications of the Hague Convention
• How Hague Convention Cases are tried in the USA ?