HAGUE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION CONVENTION

Developed by the Hague Conference on Private International Law, the Hague Abduction Convention is a multilateral convention that offers a fast-track way to return a child who has been kidnapped internationally by a parent from one country member to another.

The agreement was signed on October 25th, 1980, and came into effect on December 1, 1983, among the signatories. Abducted children who have been illegally held in a contracting state that is not their country of habitual residence will be returned to their countries of habitual residence as soon as possible under the treaty.

BACKGROUND

In 2019, Barbados and Guyana became the last two nations to join the treaty.No substantive rights of either parent or child are affected by the Convention’s provisions. When a Hague Convention case is brought, courts are not allowed to assess the merits of the child custody issue but are only allowed to select the nation in which that dispute would be tried. In this case, the kid is returning to the member nation rather than directly to the parent who has been left behind.

When a ‘habitual resident’ is breached of custody or access rights, the Convention mandates the return of the child.

HOW THE CONVENTION WORKS

Priority is given to maintaining the current custody arrangement in order to prevent a parent from crossing international borders in pursuit of an easier court. Only minors under the age of sixteen are covered by the Convention.

Law, judicial or administrative decisions, as well as an agreement that has legal force in the nation of habitual residence, are all ways in which a person might be granted custody rights. 

It is becoming less common for international jurisprudence to focus on the intent of the parents when deciding whether a child has been unlawfully removed from a family.

UNDERSTANDING PARENTAL ABDUCTION

International parental child abduction is the removal or retention of a child outside their country of habitual residence in breach of another parent or guardian’s custody rights.

When determining whether a child has been abducted, a presiding judge must examine all relevant facts, including parental purpose or consent. This was laid down in the Supreme Court of Canada’s 2018 Office of the Children’s Lawyer v. Balev judgment.

The Fifth Chamber of the European Union decided that the intention of parents alone cannot, as a general rule, be fundamental to the determination of habitual residence for a child. UK, Australian, and New Zealand legal precedents all take the same stance. In the United States, the debate over the importance of parental intention in determining whether a child has been abducted is polarising.

WHAT IS HABITUAL RESIDENCE

While remaining with one parent in a separate jurisdiction, a child’s habitual residence might change, regardless of and notwithstanding any agreement between parents about the child’s habitual residence. A legal dispute or claim is thus determined by the legislation that applies to the person who has lived in the area for the longest time. Traditional common law countries have typically relied on the law of residence to achieve the same result.

It is easier to maintain a habitual abode than a domicile, and the attention is more on the past rather than the future. There is generally just one place of residence where a person spends most of their time. ‘Home’ for a substantial amount of time is defined as a certain geographic location.

For an application for child return to be successful, the location of a kid’s regular home is critical.  The application may only succeed if the child was a habitual resident of the Member State to which return is requested at the time of the alleged removal or detention.

The phrase ‘habitual residence’ is not defined in the Convention, although it is not meant to be a technical term. According to EU legislation, a child’s ‘habitual residence’ is a location where the youngster has some degree of social and familial involvement.

Courts have to consider the unique circumstances of each particular case before making their final determinations.  A kid must be physically present at a location in order for it to be considered their ‘habitual residence.’ Child nationality and the length of time spent in a Member State are other important variables in determining the child’s place of habitual residence.

THE HYBRID APPROACH TO DETERMINING THE HABITUAL RESIDENCE

Following the historic Office of the Children’s Lawyer v. Balev judgment, a ‘hybrid approach’ was established in Canada. The hybrid method requires the judge deciding on the habitual residence to take into account all relevant factors resulting from the circumstances of the case. When determining whether a child should be removed or retained, the application judge considers the familial and social context in which the child’s life had grown immediately previous to the removal or retention. 

According to current US legal precedent, shared parental intent is an important aspect in deciphering an individual child’s home location. By unlawfully removing or sequestering a kid, a parent cannot establish a new habitual residence for the child. In order to determine a child’s ‘habitual residence,’ the court must look at the facts, the shared objectives of the parties, the history of the children’s placement, and the established character of their family prior to events that led to a request for return of the children. 

EVIDENCE ACCEPTANCE UNDER THE ABUNDANCE CONVENTION

Independent of any member nation’s evidentiary standards, the Convention establishes specific procedures for evidence acceptance and evaluation. For the purpose of a child’s return, Article 30 says that the Application for Assistance and any supporting papers filed to or received by the Central Authority is accepted.  In addition, the convention states that no member country may seek the legalization or other comparable formality of the underlying papers in the context of a Convention case. When a Convention action is taking place, the court in the State where the child resides ‘may take notice directly,’ without recourse to specific procedures for the proof of that law or for the recognition of foreign decisions that would otherwise be applicable, of ‘judicial or administrative decisions, formally recognized and not, in the State of habitual residence of the child.’

An application under the convention only takes into account a child’s best interests to a limited extent. ‘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, the conditions of application of the Convention, and the existence of a ‘grave risk.’ The European Court of Human Rights Grand Chamber laid down the precedent in X v. Latvia, a decision noted by the 2017 Special Commission on the Practical Operation of the convention.

IMPORTANT FEATURES OF THE CONVENTION

Each country that has ratified or acceded to the Convention is required to have a Central Authority. The Central Authority is the main point of contact for parents and other governments involved in abduction cases. The Central Authority generally has the responsibility to help locate abducted children, to help encourage amicable solutions to parental abduction cases, and help facilitate the safe return of children as appropriate.

Any documents submitted to the Central Authority as part of the application are admissible in courts in partner countries without the formalities often required by courts for admitting documents from foreign countries. Additionally, whether a child should be returned to their habitual residence, or whether access visitation rights exist, does not depend on the immigration status or nationality of a child or their parents. 

The Convention limits the defenses against the 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, 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 a 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

Sources

1. Any judicial and administrative bodies of contracting states are required to ‘act expeditiously in all proceedings seeking the return of a child’ and to use the most expeditious procedures available to ensure that a final decision is made within six weeks of the date of the proceedings’ initiation, as mandated by Article 4 of the Convention.

2. The Convention states that a child’s removal or detention is ‘wrongful’ if the following conditions are met:

 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.

3. The convention’s explanatory report explains what incorrect means in this context:

When one parent takes a child away from the other without their consent, the Convention considers this wrongful, and this wrongfulness stems from the fact that the other parent’s rights are also protected by law and that the removal of the child has interfered with their normal exercise.

4. The Office of Children’s Issues within the U.S. Department of State is the department of the U.S. government that puts in efforts to prevent international parental child abduction (both from the United States and to the United States), help children and families involved in abduction cases, and promote the objectives of the Hague Abduction Convention

5. The Office of the Children’s Lawyer (Office) appealed from the Ontario Court of Appeal decision setting aside a decision of the Ontario Divisional Court that set aside the application judge’s decision that granted the respondent father’s application for return of the children to Germany. The application judge concluded that the children’s habitual residence in Germany and thus ordered their return. Both children were born in Canada after their parents moved from Germany.

6. O.L. v. P.Q (2017) C111/17

7. Article 3

The removal or the retention of a child is to be considered wrongful where –

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.

8. Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

9. For the purposes of this Convention –

a)   ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b)   ‘rights of access shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

10. Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.

11. Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

12. Article 13

Notwithstanding the provisions of the preceding Article, 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 –

a)   the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b)   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 judicial or administrative authority may also refuse to order the return of the child if it finds that 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.

In considering the circumstances referred to in this article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence

13. In 2005, the mother, originally from Latvia, gave birth to a kid in Australia. The mother was still married to a guy other than the father of the kid at the time of giving birth. Paternity (of any father) was not first confirmed, but it was later determined. Single-parent payments paid by the government were received by the mother, who shared a home with the father, although the father leased an apartment. In 2007, the mother became an Australian citizen. They had a deteriorating relationship, and she left Australia with the kid, aged three and a half months, in 2008.

Later, the father sued for parental rights to the kid in the Australian Family Court, and he requested that the child be returned to him under the Hague Convention. Based on the information provided by the father, the Family Court confirmed his paternity in the Family Court (no DNA testing). Further, a judgment dated November 6, 2008, confirmed that the mother and father had shared parental responsibility for their kid from birth (retroactively). However, after being invited, the mother failed to show up for the hearing either in person or over the phone. Also, she didn’t file an appeal.

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