Hague Convention on the Civil Aspects of International Child Abduction
|Convention on the Civil Aspects of International Child Abduction|
HCCH)State parties to the convention (members of the
State parties to the convention (non-members of the HCCH)
|Signed||25 October 1980|
|Effective||1 December 1983|
|Parties||90 (October 2013)|
|Depositary||Ministry of Foreign Affairs of the Kingdom of the Netherlands|
|Languages||French and English|
|Convention on the Civil Aspects of International Child Abduction at Wikisource|
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member nation to another. Proceedings on the Convention concluded 25 October 1980 and the Convention entered into force between the signatory nations on 1 December 1983. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.
The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.
|Marriage and other
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code
(or Criminal Law)
The Convention does not provide any substantive rights. The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left-behind parent.
The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.
Wrongful removal or retention
The Convention provides that the removal or retention of a child is “wrongful” whenever:
"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." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.
"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."
The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.
Special rules of evidence
The Convention provides special rules for admission and consideration of evidence independent of the evidentiary standards set by any member nation. Article 30 provides that the Application for Assistance, as well as any documents attached to that application or submitted to or by the Central Authority are admissible in any proceeding for a child's return. The Convention also provides that no member nation can require legalization or other similar formality of the underlying documents in context of a Convention proceeding. Furthermore, the court in which a Convention action is proceeding shall “take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable" when determining whether there is a wrongful removal or retention under the Convention.
Limited defenses to return
The Convention limits the defenses against 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 13; 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 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
Noncompliance with the terms and spirit of the Hague Convention has been a particularly difficult problem in the practical implementation of the Convention. In 2009, the United States declared Brazil, Chile, Honduras, Greece and Mexico displayed "patterns of non-compliance" or "noncompliance". The USA is a notorious offender of non compliance as it makes little effort to support applicants from other countries.
By making a reservation to Article 26 in accordance with Article 42, the United States is not bound to assume any costs or expenses resulting from the participation of attorneys or from court proceedings in Hague Convention cases in the United States except insofar as they are covered by a legal aid program. Under Article 25, applicants in Hague treaty-partner countries who apply for legal aid in the United States are to be treated as if they are nationals of and habitually resident in the United States. Because there is no entitlement to legal aid in civil cases in the United States, this means that Hague applicants may be considered for legal aid, but there is no guarantee that they will receive it.
The Cuellar Versus Joyce casewas an example of the difficulties facing left behind parents applying to the US Central Authority and one which brings into question the US governments commitment to the convention. The Pro -Bono "offerings " of the US State Dept not sufficient to meet the long drawn out process of the US courts,particularly when US citizens are avoiding service of Hague proceedings. In fact the 6 week return clause of the convention is rarely if ever met in the USA.
The complicity of US Consulates in facilitating paperwork and travel documents to US citizens seeking to abduct children from contracting states is also a dilemma as they are also the department with responsibility for processing incoming cases since April 2008. The National Center for Missing and Exploited Children established in 1995 to April 2008 NCMEC fulfilled the functions of the U.S. Central Authority under the Hague Convention on "incoming cases" in which a parent abducts a child into the U.S. from a Treaty Partner Country. The U.S. Department of State assumed primary responsibility over incoming Hague Convention abduction cases in April 2008; however, NCMEC continues to provide technical assistance and resources to parents, attorneys, judges and law enforcement officials involved in incoming Hague Convention case.
As the US State Dept issue travel documents to US citizens whom transfer citizenship to their children and then use those same documents to facilitate an abduction, it is questionable that the State Dept are "over-invested" to treat incoming cases with impartiality. The issuance of US travel documents is not a crime, however when those documents are requested by a US citizen and the non US parent is not consulted then this is illegal under the Hague Convention. It is also common practice for Washington to make decisions to over ride a non US countries laws and the rights guaranteed under that respective country as regards parental and custody rights.
The US are the only contracting Hague State whom operate in this way and it is also questionable whether they are suitable Hague partners given the disparity of legal responses and judicial process,s concerning the Hague Convention. In fact the majority of Hague Convention petitions brought in the USA are only granted on appeal. The reasons are, amongst others, Judges’ inexperience in handling international abduction cases, and inadequate response by law enforcement agencies.
The Cuellar V Joyce seen applicants having to "beg for the crumbs of the convention" in US courts and its diverse legal counsels. The appeal was granted after first being denied based on Article 13 (b) grave risk clause in the convention which has become the "crutch" of Hague defence counsels in the USA.It is used and allowed by courts whom misconstrue the Hague convention as a custody dispute rather than establishing jurisdiction. The USA would be considered the contracting state that never joined the Hague Convention however still expects its conditions to be met or USA purposes. If your child ends up there it might as well be in a non contracting state as the Hague conditions could never be met.
The case of Sean Goldman, a four-year old boy abducted to Brazil, gained widespread media attention after the abducting mother died during the birth of another child. The mother's family, resident in Brazil, fought Sean's American father in Brazilian court to gain custody over Sean and keep him in the country. Ultimately, though, the Brazilian Supreme Federal Tribunal decided the case constituted child abduction under the terms of the Hague Convention, and had Sean sent back to America to live with his father.
Interpretation of article 13b: no return in case of "grave risks"
The principal purpose of the Abduction Convention is to cause the prompt return of a child to his or her "habitual residence." In certain exceptional cases under Article 13b, the court's mandatory return obligation is changed to a discretionary obligation, specifically, "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 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 duty to return a child is however not abrogated by a finding under Art. 13(b) but merely changes from mandatory to discretionary. Since the general intent of the Convention is to cause the return of a child to his or her "habitual residence," unless there are some powerful and compelling reasons otherwise the court should normally and routinely exercise its discretion and return the child to his or her "habitual residence".[according to whom?]
In the primary source of interpretation for the Convention, the Explanatory Report, Professor E. Perez–Vera noted the following:
"it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them—those of the child's habitual residence—are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."
In spite of the spirit and intent of the Convention as conveyed by the Convention itself and further reinforced by the Perez–Vera report, Article 13b is frequently used by abductors as a vehicle to litigate the child's best interests or custody. Although Article 13(b) inquiries are not intended to deal with issues or factual questions appropriate for custody proceedings, many countries use article 13b to request psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships.
The map shows the Contracting States to the Convention as October 2013.
|State||Date of entry into force||State||Date of entry into force||State||Date of entry into force|
|Austria||1-X-1988||Guinea||1-II-2012||Saint Kitts and Nevis||1-VIII-1994|
|Bosnia and Herzegovina||6-III-1992||Israel||1-XII-1991||Slovakia||1-II-2001|
|Bulgaria||1-VIII-2003||Korea, Republic of||1-III-2013||South Africa||1-X-1997|
|China, People's Republic of (Hong-Kong & Macao only, by continuation of UK & Portugal)||Luxembourg||1-I-1987||Switzerland||1-I-1984|
|Costa Rica||1-II-1999||Mauritius||1-VI-1993||The Republic of Macedonia||1-XII-1991|
|Croatia||1-XII-1991||Mexico||1-IX-1991||Trinidad and Tobago||1-IX-2000|
|Cyprus||1-II-1995||Moldova, Republic of||1-VII-1998||Turkey||1-VIII-2000|
|Dominican Republic||1-XI-2004||Morocco||1-VI-2010||United Kingdom of Great Britain and Northern Ireland||1-VIII-1986|
|Ecuador||1-IV-1992||Netherlands||1-IX-1990||United States of America||1-VII-1988|
|El Salvador||1-V-2001||New Zealand||1-VIII-1991||Uruguay||1-II-2000|
- International child abduction
- Child abduction
- Child laundering
- Child harvesting
- List of international adoption scandals
- Hague Adoption Convention
- Hague Abduction Convention Compliance Reports (US)
- International Child Abduction Remedies Act (US)
- Hague Conference on Private International Law
- "Status table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction". Hague Conference on Private International Law. 14 June 2011. Retrieved 19 July 2011.
- Hague Convention, Preamble.
- Hague Convention, Article 4.
- Hague Convention, Article 11.
- Hague Convention, Article 3.
- Elisa Perez–Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ("Explanatory Report"), 71, at 447–48
- Mozes v. Mozes, 239 F.3d 1067, 1073 (US 9th Cir. 2001) Case details on the INCADAT website
- Hague Convention, Article 30
- Hague Convention, Article 23.
- Hague Convention, Article 14
- US Department of State, Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, April 2009 
- see Cuellar v Joyce, --- F.3d ----, 2010 WL 624886 (9th Cir.(Mont.)
- US Dept Justice report https://www.ncjrs.gov/pdffiles1/ojjdp/190105.pdf
- William M. Hilton (1997). "The Limitations on Art. 13(b) of The Convention on the Civil Aspects of International Child Abduction done at the Hague on 25 Oct 1980". Retrieved 2009-06-12.
|Wikimedia Commons has media related to Hague Abduction Convention.|
- Full Text of the Convention
- Explanatory Report by Elisa Perez-Vera
- INCADAT—Case-law database of different jurisdictions concerning the 1980 Hague Child Abduction Convention
- US State Department International—Parental Child Abduction—Compliance Report 2011
- Contracting States
- The Child Abduction Section of the Hague Conference website
- Case law and materials including Hebrew documents
- Hague Conference Guides to good practice
- The Hague Domestic Violence Project International Child Abduction and Domestic Violence
- Multiple perspectives on the implications of the Hague Convention