Child kidnapping by a parent is a serious matter with grave consequences. The Hague Convention on the Civil Aspects of International Child Abduction (1980), often referred to as the Hague Convention on Child Kidnapping, is an international treaty that aims to protect children from international abduction by a parent or guardian. It provides a legal framework to ensure the return of children who have been abducted to another country.
Primary objective: prompt return of the child
The central objective of the convention is to ensure the prompt return of children wrongfully removed to or retained in another country. The convention aims to restore the status quo and resolve custody disputes in the child’s original country of habitual residence. The convention focuses on returning the child rather than deciding on custody itself. This ensures that the courts in the child’s country of habitual residence address custody matters. Taking a child out of a country illegally does not alter the court’s jurisdiction.
To whom does the Hague Convention on Child Kidnapping apply?
The convention applies to children under the age of 16. Furthermore, the convention only applies between countries that have ratified or acceded to the convention (i.e., participating countries). This means that if a child has been moved to a country that is not a member of the convention, then the convention cannot directly be applied. However, if a child is moved from a country that is not a member to a convention state, then the courts in the convention state should apply the principles of the convention.
Definition of wrongful removal or retention of a child
A child’s removal or retention is considered “wrongful” if it breaches the custody rights applicable in the child’s country of habitual residence immediately before the abduction. This includes leaving the country without the other parent’s permission when they have joint custody rights, as well as refusing to return from another country with the child on an agreed date. For example, not returning from a vacation with the child.
Timeframe for return of the child
If a petition for the child’s return is filed within one year of the abduction, the courts in the requested country are obligated to order the return unless an exception applies. If more than a year has passed, the court must still order the return, unless it is shown that the child is now settled in the new environment. In practice, the longer a child has been settled, the less likely it is that return will be ordered.
Exceptions to the rule a child must be returned to their country of origin
The Convention includes a few narrowly defined exceptions where a court may deny the child’s return:
- if there is a grave risk that returning the child would expose them to physical or psychological harm or otherwise place them in an intolerable situation;
- if the child objects to being returned and has attained an age and maturity level at which it is appropriate to consider their views;
- if return violates the fundamental principles of human rights and freedoms in the country handling the case;
- if the other parent had originally consented to the child’s removal or retention.
Preventive measures to prevent child kidnapping
The Convention also encourages preventive measures, such as requiring permission from both parents before a child can leave the country or issuing court orders to prevent potential abductions. In The Netherlands, it is strongly advised to use a permission form when travelling with children. The form not only proves that permission has been given to travel but also for how long. At border control posts there are regular checks around vacation times. A copy of the current form can be downloaded here.
Role of Central Authorities in returning a child
Each signatory country designates a Central Authority to handle requests for the return of abducted children. This authority is in contact with the ensuring a safe return. The central authorities communicate with each other about cases and process official requests for return. If the child is not returned voluntarily after intervention by the Central Authority, the parent may still have to initiate court proceedings quickly.
Providing assistance to parents to limit costs is also tne of the requirements of the Convention. In The Netherlands, besides the Central Authority, there is also an independent advisory body, the International Child Abduction Centre, also known as IKO, that provides advice and guidance in cases of (imminent) child kidnapping free of charge. IKO also provides (paid) cross border mediation services to seek negotiated solutions.
Enforcement and cooperation on returning children to their home
The Hague Convention on Child Kidnapping is widely recognised and has been ratified by nearly 100 countries. You can consult a list of current signatories here. Signatory countries are expected to cooperate and take measures to enforce the convention’s provisions. However, actual enforcement may vary widely depending on the country’s legal system and traditions.
For example, in some countries, the position of one of the parents may be significantly stronger. The courts may then make use of an exception more easily to block the return of the child. The position of the mother as primary caregiver holds more weight in some countries than the principle of joint custody. On the other hand there are also countries where the father only has custody.
What should you do if your child is abducted by the other parent?
Time is of the essence in these cases. The sooner legal steps are taken, the more likely it is that the child will be safely returned. This does not necessarily mean filing a police report as prosecution can actually prevent a parent from returning with the child. Contact IKO first and follow their advice. Try and mobilise family or friends of the other parent to persuade them to return. And importantly, hire a lawyer local to where the other parent has gone. Have them warn the other parent in writing that you do not agree with the relocation of your child. Do this as soon as possible. Also look into what legal action you can take in your place of residence or the country your child is in.
Once the child is returned, the actions of the other parent may result in a change of custody or restrictions on visitation. This must be further decided by the court local to where the child normally lives.
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If you have any questions regarding (imminent) child abduction to or from The Netherlands, please feel free to contact us.