Divorce:

The Hague Convention

The Hague Convention, the full title being The Hague Convention on the Civil Aspects of International Child Abduction, is an international treaty dealing with issues of international child abduction.  Aspects of it are important to international divorces, separations, etc. It should be noted that the purpose of the Convention is not to determine issues of custody, but rather to simply ensure that an abducted child is returned to his or her country of habitual residence. Other disputes of custody must be resolved by the country in which the child lives.  The determination of a parent’s custody right is based upon the law of the country in which the child is habitually resident.

The Hague Convention is applicable in cases where all three of the following are true:

  • The country of the child’s habitual residence AND the country to which the child was taken BOTH have accepted the Convention
  • The child in is younger than 16 years old
  • The taking of the child was wrong (as defined in section 3 of the Convention) in that is was a breach of rights of custody under the law of the place of the child's habitually residence

Importantly, the fundamental phrase, “place of habitual residence,” is not clearly defined and consequently has been much litigated.  Some important aspects of this include: 

  • Citizenship does not determine the place of habitual residence
  • A person can have only one habitual residence
  • Habitual residence pertains to the time before the child was removed, not after.
  • Habitual residence is only affected by changes in geography, not in relationships with parents or guardians. 

The Hague Convention provides two possible, and not mutually exclusive, remedies to the parents of abducted children:

1) The guardian or parent of the child can make an application to the specified Central Authority of the nation where the child habitually resides or any other nation that had accepted the Hague Convention, in order to receive administrative assistance in securing a child's return. In the United States, the State Department's Office of Children's Issues in the Bureau of Consular Affairs is its Central Authority regarding these matters.

2) The parent or guardian of the child can also begin judicial proceedings in the nation where the child has been taken. In the US, both federal and state courts have simultaneous jurisdiction over Hague Convention cases; consequently a US state or federal court must give full faith and credit to the judgment of any other US state or federal court involved in an action that has been initiated under the Convention. At least one federal appeals court has ruled that decisions made by foreign courts under the Convention are not entitled to full faith and credit.  Still, they do have the right to deference, under principles of international comity.

The parents or guardians who are bringing a case under the Hague Convention can also request one of the following: 

  • The return of wrongfully taken child or children
  • An agreement that protects and provides for the proper exercise of rights of access to the child

Obviously, the details governing the latter are less straightforward than the first. 

Exceptions

There are six possible reasons for not returning a child to the country of habitual residence; they are:

1)  If returning the child poses a grave risk of harm.  One example of this would be returning a child to a war zone, or place stricken by famine or disease. The second possible reason is if there are strong indications of abuse or neglect, or of extraordinary emotional dependence.  It should be noted that England’s standards are even more severe. 

2) If there are overriding human rights issues.  This is very rarely used, but is put in place in the event that the return of the child would go directly against the conscience of the court and all notions of due process.

3) If the child has been in the new environment for more than a year, AND has become acclimated to it.  The time begins from the day the child was wrongfully removed.

4) If the parent or guardian, at the time of removal, was not exercising his or her custody rights.

5) If the parent or guardian making the petition at some point had agreed to the removal.   

6) If the child, of sufficient age and maturity, objects to being returned. 

In the event that the court rules that the child be returned, there are often certain requirements that it sets, before this takes place.  They include:

  • The petitioner must pay for the respondent and child to travel to the country where the child habitually resides
  • The petitioner must provide suitable housing arrangements for the respondent and child in the country where the child habitually resides
  • The petitioner must pay living expenses for the respondent and child in the country of the child's habitual residence
  • The petitioner cannot have make contact with the respondent in the event that the respondent returns to the country of the child's habitual residence
  • The petitioner cannot have contact (or only limited/supervised) contact with the child once the child returns to the country of the habitual residence

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