Child abduction is a serious issue, particularly when it happens on an international level. It is estimated that every 40 seconds a child is abducted or goes missing in the United States. Globally, about 8 million children are abducted each year. The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Abduction Convention”) is a multilateral treaty providing a streamlined and quick method to return a child from one member country to another who has been abducted internationally by a parent. The Hague Abduction Convention became enforceable as of December 1, 1983. The primary purpose of the treaty is to preserve the “status quo” custody arrangement that was in place immediately before a purported abduction occurred by a parent. The treaty only applies to children under 16 years of age and as of 2021, there are 101 parties to the convention.
Only Procedural Remedy
It is important to understand that the Hague Abduction Convention does not change any substantive rights of the parents or the child. Instead, the treaty mandates that a court in which the Hague Abduction Convention action is filed should only determine the country in which the custody dispute should be adjudicated and not consider the merits of any underlying custody battle. Importantly, the allegedly abducted child is returned to the member state and not specifically to the parent seeking the return of the minor. The Hague Abduction Convention requires that all countries party to the treaty act expeditiously in all proceedings that seek the return of a child and that their institutions use the quickest procedures available with a final decision that happened within six weeks of the initiation of the legal matter.
Understanding Wrongful Retention or Removal
The Hague Abduction Convention defines retention or removal of a child as “wrongful” when:
● When the rights of custody are breached by a person, institution, or any other body under the law of the state where the child was a habitual resident immediately before the retention or removal; and
● At the time of the retention or removal the custody rights were exercised or would have been but for the child’s retention or removal.
Child custody rights may stem by operation of law, by a judicial or administrative decision, or by an agreement by the parties that is legally binding under the laws of the country of habitual residence. The retention or removal of a child is wrongful when it is done without the consent of the other parent, in disregard of the rights of that parent.
For more information on the Hague Abduction Convention, click here.
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