Children Protected by the Hague Convention on the Civil Aspects of International Child Abduction

A fundamental purpose of the Hague Convention is to protect children from
wrongful international removals or retentions by persons bent on obtaining their
physical and/or legal custody. Children who are wrongfully moved from country
to country are deprived of the stable relationships which the Convention is
designed promptly to restore.

Contracting States are obliged by Article 2 to
take all appropriate measures to implement the objectives of the Convention as
set forth 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 other Contracting States.

While these objectives are universal in their appeal, the Convention does not cover all children who might be victims of wrongful takings or retentions. A threshold inquiry, therefore, is whether the child who has been abducted or retained is subject to the Convention’s
provisions. Only if the child falls within the scope of the Convention will the administrative and judicial mechanisms of the Convention apply.

Age

The Convention applies only to children under the age of sixteen (16). Even
if a child is under sixteen at the time of the wrongful removal or retention as
well as when the Convention is invoked, the Convention ceases to apply when the
child reaches sixteen. Article 4.

Absent action by governments to expand coverage of the Convention to children
aged sixteen and above pursuant to Article 36, the Convention itself is
unavailable as the legal vehicle for securing return of a child sixteen or
older. However, it does not bar return of such child by other means.
Articles 18, 29 and 34 make clear that the Convention is a nonexclusive
remedy in cases of international child abduction. Article 18 provides that the
Convention does not limit the power of a judicial authority to order return of a
child at any time, presumably under other laws, procedures or comity,
irrespective of the child’s age. Article 29 permits the person who claims a
breach of custody or access rights, as defined by Articles 3 and 21, to bypass
the Convention completely by invoking any applicable laws or procedures to
secure the child’s return. Likewise, Article 34 provides that the Convention
shall not restrict the application of any law in the State addressed for
purposes of obtaining the child’s return or for organizing visitation rights.
Assuming such laws are not restricted to children under sixteen, a child sixteen
or over may be returned pursuant to their provisions.

Notwithstanding the general application of the Convention to children under
sixteen, it should be noted that the wishes of mature children regarding their
return are not ignored by the Convention. Article 13 permits, but does not
require, the judicial authority to refuse to order the child returned if the
child “objects to being returned and has attained an age and degree of maturity
at which it is appropriate to take account of its views.” The role of the
child’s preference in return proceedings is discussed further at III.I(2)(d),
infra.

Residence

In order for the Convention to apply the child must have been “habitually resident in a Contracting State immediately before any breach of custody or access rights.” Article 4. In practical terms, the Convention may be invoked only where the child was habitually resident in a Contracting State and taken to or retained in another Contracting State. Accordingly, child abduction and retention cases are actionable under the Convention if they are international in nature (as opposed to interstate), and provided the Convention has entered into force for both countries involved. See discussion of Article 38, VI.B, infra. To illustrate, take the case of a child abducted to California from his home in New York. The Convention could not be invoked to secure the return of such child. This is true even if one of the child’s parents is an American citizen and the other a foreign national. The Uniform Child Custody Jurisdiction Act (UCCJA) and/or the Parental Kidnapping Prevention Act (PKPA), domestic state and federal law, respectively, would govern the return of the child in question. If the same child were removed from New York to Canada, application under the Convention could be made to secure the child’s return provided the Convention had entered into force both for the United States and the Canadian province to which the child was taken. An alternative remedy might also lie under other Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada could seek to secure the child’s return by petitioning for enforcement of a Canadian custody order pursuant to the UCCJA, or by invoking the Convention, or both.

Timing/Cases Covered

Article 35 states that the Convention shall apply as between Contracting
States only to wrongful removals or retentions occurring after its entry into
force in those States. Following a strict interpretation of that Article, the
Convention will not apply to a child who is wrongfully shifted from one
Contracting State to another if the wrongful removal or retention occurred
before the Convention’s entry into force in those States. However, under a
liberal interpretation Article 35 could be construed to cover wrongful removal
or retention cases which began before the Convention took effect but which
continued and were ongoing after its entry into force.

Effect of Custody Order Concerning the Child

Existing Custody Orders

Children who otherwise fall within the scope of the Convention are not
automatically removed from its protections by virtue of a judicial decision
awarding custody to the alleged wrongdoer. This is true whether the decision as
to custody was made, or is entitled to recognition, in the State to which the
child has been taken. Under Article 17 that State cannot refuse to return a
child solely on the basis of a court order awarding custody to the alleged
wrongdoer made by one of its own courts or by the courts of another country.
This provision is intended to ensure, inter alia, that the Convention takes
precedence over decrees made in favor of abductors before the court had notice
of the wrongful removal or retention.

Thus, under Article 17 the person who wrongfully removes or retains the child
in a Contracting State cannot insulate the child from the Convention’s return
provisions merely by obtaining a custody order in the country of new residence,
or by seeking there to enforce another country’s order. Nor may the alleged
wrongdoer rely upon a stale decree awarding him or her custody, the provisions
of which have been [*10505] derogated from subsequently by agreement or
acquiescence of the parties, to prevent the child’s return under the Convention.
Article 3.

It should be noted that Article 17 does permit a court to take into account
the reasons underlying an existing custody decree when it applies the
Convention.

Pre-Decree Removals or Retentions

Children who are wrongfully removed or retained prior to the entry of a custody order are protected by the Convention. There need not be a custody order in effect in order to invoke the Convention’s return provisions. Accordingly, under the Convention a child will be ordered returned to the person with whom he or she was habitually resident in pre-decree abduction cases as well as in cases involving violations of existing custody orders. Application of the Convention to pre-decree cases comes to grips with the reality that many children are abducted or retained long before custody actions have been initiated. In this manner a child is not prejudiced by the legal inaction of his or her physical custodian, who may not have anticipated the abduction, and the abductor is denied any legal advantage since the child is subject to the return provisions of the Convention. The Convention’s treatment of pre-decree abduction cases is distinguishable from the Council of Europe’s Convention on Recognition and Enorcement of Decisions Relating to the Custody of Children, adopted in Strasbourg, France in November 1979 (“Strasbourg Convention”), and from domestic law in the United States, specifically the UCCJA and the PKPA, all of which provide for enforcement of custody decrees. Although the UCCJA and PKPA permit enforcement of a decree obtained by a parent in the home state after the child has been removed from that state, in the absence of such decree the enforcement provisions of those laws are inoperative. In contrast to the restoration of the legal status quo ante brought about by application of the UCCJA, the PKPA, and the Strasbourg Convention, the Hague Convention seeks restoration of the factual status quo ante and is not contingent on the existence of a custody decree. The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child’s best interests. Pre-decree abductions are discussed in greater detail in the section dealing with actionable conduct.

See Also

Hague Convention on the Civil Aspects of International Child Abduction