Written by: Joseph Broadhurst (View All Posts
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) Published: July 7, 2017
Categorized: Child Abduction.
The Hague Convention on the Civil Aspects of International Child Abduction, often referred to as simply “the Hague Convention” in family law circles is an international treaty that governs the return of children to their country of habitual residence when they have been abducted to another signatory country. It is important to keep in mind that the Hague Convention only applies to signatory countries (a list of which is included below). If children are abducted to non-signatory countries, the convention does not apply.
The convention applies if a parent wrongfully removes or wrongfully retains a child in a signatory country. A removal or retention is wrongful when:
- 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 (country) in which the child was habitually resident immediately before the removal or retention; and
- at the time of removal or retention those rights were exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
If a child is wrongfully removed or retained, the country in which they are now located is not to consider the underlying merits of the case; they are supposed to simply send the child back unless:
- The person seeking the return acquiesced to the removal or retention;
- Over a year has passed since the removal or retention;
- The person seeking the return was not actually exercising custody rights;
- There is a grave risk of harm to the child if they are returned;
- The child does not want to return and they are old and mature enough* that it is appropriate for the court to take account of their views; or
- The child would be subject to violation of human rights and fundamental freedoms.
*”Old and mature enough” is determined on a case-by-case basis but the general guideline is that a child should be at least 12 or 13 years old.
The way the convention is structured is important because it prevents parents from abducting children to other countries and then trying to litigate the best interests of the child in that other country. It requires the court where the child is present to send the child back to the country where they were habitually resident for the underlying issues to be determined.
To initiate Hague proceedings, the left behind parent contacts their own government who will have some form of central authority for dealing with Hague applications. In BC the Ministry of Justice has a specific lawyer assigned to this task. For more information click HERE. The government of the habitual residence of the child then contacts the government of the country where the child is now located to initiate the Hague proceedings. Often, the left behind parent receives legal representation in the country where the child is located for free.
Because of the time limits, as well as the fact that the process takes some time, it is important to take prompt steps if a child has been abducted. While the actual Hague convention process is handled by the government, a lawyer familiar with the process can assist you in ensuring that there are no snags, and with dealing with the ancillary issues that are likely to arise.
Click here for a list of the current signatories to The Hague Convention on the Civil Aspects of International Child Abduction.
