By Véronique Malka Nasser
Barrister&Solicitor, Ontario, Canada
Foreign Legal Consultant, New Jersey
With the rate of Divorce rapidly rising, child abductions have become increasingly common. Already victims of the acrimony too often felt by the separating parents, children are now becoming the pawns of some parents who unilaterally chose to relocate to start a new life following the split. This sudden relocation is done without regard to the custodial or access rights of the other parent. Similarly, a parent may chose not to return a child to the custodial caregiver after a summer visit in another jurisdiction, which is what we call a “wrongful retention.” The left-behind parent – whose rights are breached – is forced to run to police and the courts to recover the children, which is a burdensome, lengthy and often costly recourse.
Aiming to remedy and deter this problem, the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), T.I.A.S. No.11, 670 1343 U.N.T.S. 89, 51 Fed. Reg. 10, 493 (app. B), was concluded on October 25, 1980 and entered into force on December 1, 1983. The Hague Convention applies only as in between States that have ratified it (“contracting states”). This international treaty offers an administrative and judicial mechanism to assist parents seeking the return of their abducted children. As stated in its preamble, the object of the Convention is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of habitual residence, as well as to secure protection for rights of access.” The 2005 Report on Compliance with the Hague Convention issued by the Bureau of Consular Affairs, U.S. Department of State, claims that over 50% of abducted children are returned through use of the Hague Convention.
By ratifying the Convention, contracting states agree that there is a “wrongful removal” or “wrongful retention” when a child of less than 16 years of age is taken to, or retained, in a country by one parent, in violation of the other parent’s custodial or access rights. Each member state must set up a Central Authority in charge of administering the Convention. In Canada, it is customarily the Office of the Attorney General, and in the U.S., it is the Department of State. Any claim for abduction by a parent is directed to this branch of government, which in turn contacts the Central Authority in the country where the child is located. The Central Authority must assign the case to an outside attorney who must commence an urgent Hague proceeding in a local court.
The language of the Convention is clear: The Court faced with an application for the return of a child to his habitual residence must return the child immediately (unless certain very specific exceptions are met, as set out in Article 13 and interpreted by a vast body of caselaw). There is no determination on the merits of the “best interests of the child” in these cases, and no consideration of the traditional custody notion of status quo.
Despite its noble intentions, the Convention’s mechanism is not without problems. Most evident are the delays inherent in the administrations of the respective Central Authorities, which take time to open files, locate and contact the abducting parent, find and designate attorneys able and available to handle such special and urgent cases, and finally, the delays seen too often in the court system itself, which is already overloaded with contested and pressing family law matters. Often, the judges hearing Hague cases are themselves not sufficiently familiar with the nature and operation of the Convention, and need to be briefed by counsel, with caselaw and authorities, as to the special treatment that these cases deserve in the court system, very different from daily family law disputes heard in their forum.
Less obvious are the concerning time limitation periods built into the Convention. For example, Article 13 provides an exception to the prompt return rule where the court finds that “the child has attained an age and degree of maturity at which it is appropriate to take account of its views.” Therefore, in cases where too much time elapses between the wrongful retention and the hearing of the Hague case, a child will naturally become older and may come to qualify for this exception. Accordingly, because of these discrete time concerns built into the Convention, a lawyer’s prompt action in these cases is crucial; lawyers who are not available to put such a case ahead of all others, or who are not well versed in Hague matters, should swiftly refer out the case to a Hague attorney.
Although one of the stated objectives of the Central Authorities is to “discover the whereabouts of a child” abducted, in practical reality, there is no automatic assistance in cases where the left-behind parent cannot pinpoint the exact location of the abducting parent. Recourse to local and federal police forces is necessary, which in turn have their own jurisdiction limitations, and timely intake and search procedures. There are organizations like Child Find of America Inc. which can assist in locating the disappearing parent and child. However, the legal and judicial recovery system of the Hague Convention is not easily, nor quickly, triggered in cases of an unconfirmed abduction.
Currently, 75 countries have ratified the Hague Convention. Several countries seem to add themselves to the list each year. Yet, if a child is wrongfully taken to a country that has not signed on (Grenada, for example), the Hague will not apply and one can anticipate tremendous difficulties recovering that child through the normal legal channels. Often, the abducting parent will commence a custody proceeding in the non-contracting country, with ex parte allegations by affidavit justifying the change of jurisdiction. Other times, the parent left behind may seek an immediate local order, but then needs to have it transferred to the non-contracting country for enforcement. Good luck. Chances are that local courts in the non-contracting country will determine the matter through the usual “best interest of the child” analysis, which, with the passage of time caused by administrative delays and the credence unfortunately given to unfounded allegations by the abducting parent, will greatly increase the chances of a change of the custody status quo.
With the rising incidence of child abductions worldwide, lawyers should become better versed in the workings of the Hague Convention and promote its application in their jurisdiction whenever possible. When advising clients and drafting separation agreements that touch on mobility and travel rights, if there are children and serious acrimony between the parties, specific terms should be agreed to in order to trigger the automatic application of the Hague Convention to their case in the event of a non-return. Let us look forward to more countries ratifying the Convention so as to further deter abductions and make the application of the Convention uniform worldwide.