Hague International Child Abduction Convention: Legal Analysis

Introduction

The Convention was adopted on October 24, 1980 at the Fourteenth Session of
the Hague Conference on Private International Law in Plenary Session by
unanimous vote of twenty-three member states of that organization. The
Convention was opened for signature on October 25, 1980, at which time it was
signed by Canada, France, Greece and Switzerland. It was signed on behalf of
the United States on December 23, 1981, and has also been signed by Belgium and
Portugal. The Convention is in force for France, Portugal, Switzerland and most
parts of Canada.

The Convention stemmed from a proposal first advanced at a Hague Conference
Special Commission meeting in 1976 that the Conference prepare a treaty
responsive to the global problem of international child abduction. The
overriding objective was to spare children the detrimental emotional effects
associated with transnational parental kidnapping.

The Convention establishes a system of administrative and legal procedures to
bring about the prompt return of children who are wrongfully removed to or
retained in a Contracting State. A removal or retention is wrongful within the
meaning of the Convention if it violates custody rights that are defined in an
agreement or court order, or that arise by operation of law, provided these
rights are actually exercised (Article 3), i.e., custody has not in effect been
abandoned. The Convention applies to abductions that occur both before and
after issuance of custody decrees, as well as abductions by a joint custodian
(Article 3). Thus, a custody decree is not a pre-requisite to invoking the
Convention with a view to securing the child’s return. By promptly restoring
the status quo ante, subject to express requirements and exceptions, the
Convention seeks to deny the abductor legal advantage in the country to which
the child has been taken, as the courts of that country are under a treaty
obligation to return the child without conducting legal proceedings on the
merits of the underlying conflicting custody claims.

Each country must establish at least one national Central Authority primarily
to process incoming and outgoing requests for assistance in securing the return
of a child or the exercise of visitation rights (Article 6). In the United
States the Central Authority is to be located in an existing agency of the
federal government which will, however, need to rely on state and local
facilities, including the Federal Parent Locator Service and the private bar, in
carrying out the measures listed in Article 7 of the Convention. These
meassures include best efforts to locate abducted or retained children, explore
possibilities for their voluntary return, facilitate provision of legal services
in connection with judicial proceedings, and coordinate arrangements for the
child’s return travel (Article 7).

Articles 11-17 are the major provisions governing legal proceedings for the
return of an abducted child. Under the Convention, if a proceeding is brought
less than a year from the date of the removal or retention and the court finds
that the conduct was wrongful, the court is under a treaty obligation to order
the child returned. When proceedings are brought a year or more after the date
of the removal or retention, the court is still obligated to order the child
returned unless the person resisting return demonstrates that the child is
settled in the new environment (Article 12).
Althoug15h the Convention ceases to apply as soon as a child reaches sixteen
years of age (Article 4), it does not limit the power of appropriate authorities
to order the return of an abducted or wrongfully retained child at any time
pursuant to other laws or procedures that may make return in the absence of a
treaty obligation possible (Article 18).

Articles 13 and 20 enumerate those exceptional circumstances under which the
court is not obligated by the Convention to order the child returned. The
person opposing return of the child bears the burden of proving that: (1)
custody rights were not actually being exercised at the time of the removal or
retention by the person seeking return or the person seeking return had
consented to or subsequently acquiesced in the removal or retention; or (2)
there is a grave risk that return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation. A
court also has discretion to refuse to order a child returned if it finds that
the child objects to being returned and has reached an age or degree of maturity
making it appropriate to consider his or her views (Article 13). A court may
also deny a request to return a child if the return would not be permitted by
the fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms (Article 20). Unless one of the enumerated
exceptions to the return obligation is deemed to apply, courts in Contracting
States will be under a treaty obligation to order a child returned.

Visitation rights are also protected by the Convention, but to a lesser
extent than custody rights (Article 21). The remedies for breach of the “access
rights” of the non-custodial parent do not include the return remedy provided by
Article 12. However, the non-custodial parent may apply to the Central
Authority under Article 21 for “organizing or securing the effective exercise of
rights of access.” The Central Authority is to promote the peaceful enjoyment of
these rights. The Convention is supportive of the exercise of visitation
rights, i.e., visits of children with non-custodial parents, by providing for
the prompt return of children if the non-custodial parent should seek to retain
them beyond the end of the visitation [*10497] period. In this way the
Convention seeks to address the major concern of a custodial parent about
permitting a child to visit the non-custodial parent abroad.

If the Convention machinery succeeds in rapidly restoring children to their
pre-abduction or pre-retention circumstances, it will have the desirable effect
of deterring parental kidnapping, as the legal and other incentives for wrongful
removal or retention will have been eliminated. Indeed, while it is hoped that
the Convention will be effective in returning children in individual cases, the
full extent of its success may never by quantifiable as an untold number of
potential parental kidnappings may have been deterred.

This country’s participation in the development of the Convention was a
logical extension of U.S. membership in the Hague Conference on Private
International Law and bipartisan domestic concern with interstate parental
kidnapping, a phenomenon with roots in the high U.S. divorce rate and mobility
of the population. In response to the public outcry over parental kidnapping,
all states and the District of Columbia enacted the Uniform Child Custody
Jurisdiction Act (UCCJA), and Congress has enacted the Parental Kidnapping
Prevention Act (PKPA), the Missing Children Act, and the Missing Children’s
Assistance Act. These statutes address almost exclusively problems associated
with inter-state parental kidnapping. The Convention will expand the remedies
available to victims of parental kidnapping from or to the United States.

The Convention will be of great assistance to parents in the United States
whose children are wrongfully taken to or retained in other Contracting States.
Such persons now have no choice but to utilize laws and procedures applicable to
recognition and enforcement of foreign custody decrees in the country in which
the child is located. It is often necessary to retain a foreign lawyer and to
apply or reapply for custody to a foreign court, which typically pits the U.S.
petitioner against the abducting parent who may have his or her origins in that
foreign country and may thus have the benefit of defending the custody suit in
what may be a friendly forum. The Convention will be especially meaningful to
parents whose children are abducted before U.S. custody orders have been issued
because return proceedings under the Convention are not contingent upon the
existence of such orders.
At any given time during the past several years, about half of the several
hundred requests to the Department of State for assistance in recovering
children taken out of the United States have involved abductions to countries
which participated in the preparation and negotiation of the Hague Convention.
This suggests that U.S. ratification of the Convention, and its ultimate
ratification by many of those other countries, is likely to benefit a
substantial number of future victim children and parents residing in the United
States.

For parents residing outside the United States whose children have been
wrongfully taken to or retained in this country, the Convention will likewise
serve as a vehicle for prompt return. In such cases involving violations of
existing foreign court orders, the victim parent outside the United States may
either invoke the Convention or seek return of the child in connection with an
action for recognition of the foreign custody decree pursuant to the UCCJA or
other available means. The Convention will be especially advantageous in predecree
abduction cases where no court order exists that may be enforced under
the UCCJA.

The Convention has received widespread support. The Secretary of State’s
Advisory Committee on Private International Law — on which ten major national
legal organizations interested in international efforts to unify private law are
represented — has endorsed the Convention for U.S. ratification. The House of
Delegates of the American Bar Association adopted a resolution in February, 1981
urging U.S. signature and ratification of the Convention. U.S. ratification is
also supported by the Department of Justice and the Department of Health
Services. In reply to a State Department letter inquiring whether and how the
states of the United States could assist in implementing the Convention if it
were ratified by the United States, officials of many states welcomed the
Convention in principle and expressed general willingness to cooperate with the
federal Central Authority in its implementation.

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

Introduction

The Hague Convention on the Civil Aspects of International Child Abduction
consists of six chapters containing forty-five articles. While not formally
incorporated into the Convention, a model form was prepared when the Convention was adopted by the Hague Conference on Private International Law and was
recommended for use in making application for the return of wrongfully removed
or retained children.

Important Aspects

• Children Protected by the Convention ((Preamble, Article 1), including Age, Residence, Timing/cases covered,D. Effect of custody order concerning the child (which covers Existing custody orders and Pre-decree removals or retentions)
• Conduct Actionable Under the Convention, which includes the International “child abduction” not criminal: Hague Convention distinguished from extradition treaties and the “Wrongful removal or retention”.
• Judicial Proceedings for Return of the Child
• Access Rights (Article 21)

….
The Convention is designed to secure the prompt return of children who have
been abducted from their country of habitual residence or wrongfully retained
outside that country. It also seeks to facilitate the exercise of visitation
rights across international borders. The Convention reflects a worldwide
concern about the harmful effects on children of parental kidnapping and a
strong desire to fashion an effective deterrent to such conduct.
The Convention’s approach to the problem of international child abduction is
a simple one. The Convention is designed promptly to restore the factual
situation that existed prior to a child’s removal or retention. It does not
seek to settle disputes about legal custody rights, nor does it depend upon the
existence of court orders as a condition for returning children. The
international abductor is denied legal advantage from the abduction to or
retention in the country where the child is located, as resort to the Convention
is to effect the child’s swift return to his or her circumstances before the
abduction or retention. In most cases this will mean return to the country of
the child’s habitual residence where any dispute about custody rights can be
heard and settled.
The Convention calls for the establishment of a Central Authority in every
Contracting State to assist applicants in securing the return of their children
or in exercising their custody or visitation rights, and to cooperate and
coordinate with their counterparts in other countries toward these ends.
Moreover, the Convention establishes a judicial remedy in wrongful removal or
retention cases which permits an aggrieved parent to seek a court order for the
prompt return of the child when voluntary agreement cannot be achieved. An
aggrieved parent may pursue both of these courses of action or seek a judicial
remedy directly without involving the Central Authority of the country where the
child is located.
The Convention would represent an important addition to the State and Federal
laws currently in effect in the United States that are designed to combat
parental kidnapping — specifically, the Uniform Child Custody Jurisdiction Act
now in effect in every State in the country, the Parental Kidnapping Prevention
Act of 1980, the 1982 Missing Children Act and the Missing Children’s Assistance
Act. It would significantly improve the chances a parent in the United States
has of recovering a child from a foreign Contracting State. It also provides a
clear-cut method for parents abroad to apply for the return of children who have
been wrongfully taken to or retained in this country. In short, by establishing
a legal right and streamlined procedures for the prompt return of
internationally abducted children, the Convention should remove many of the
uncertainties and the legal difficulties that now confront parents in
international child abduction cases.

….
On October 30, 1985 President Reagan sent the 1980 Hague Convention on the
Civil Aspects of International Child Abduction to the U.S. Senate and
recommended that the Senate give early and favorable consideration to the
Convention and accord its advice and consent to U.S. ratification. The text of
the Convention and the President’s Letter of Transmittal, as well as the
Secretary of State’s Letter of Submittal to the President, were published
shortly thereafter in Senate Treaty Doc. 99-11. On January 31, 1986 the
Department of State sent to Senator Lugar, Chairman of the Senate Committee on
Foreign Relations to which the Convention was referred, a detailed Legal
Analysis of the Convention designed to assist the Committee and the full Senate
in their consideration of the Convention.