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(HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.

The Convention was concluded 25 October 1980 and entered into force between the signatories 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.

As of May 2018, 98 states are party to the convention. In 2017, Tunisia and Jamaica acceded to the convention.

Procedural nature

The Convention does not alter any substantive rights. The Convention requires that a 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 country rather than specifically to the left-behind parent.

The Convention requires the return of a child who was a “habitual resident” in a contracting party 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.”

Habitual residence

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.

Nom compliance

2016 US Annual Report on International Parental Child Abduction

Noncompliance with the terms and spirit of the Hague Convention has been a particularly difficult problem in the practical implementation of the Convention. In 2014, the United States declared Brazil, Mexico, Romania, and Ukraine as “Countries with Enforcement Concerns.” Additional countries are listed and reference to the most recent report should be made by concerned parties.

The Cuellar Versus Joyce case was an example of the difficulties facing left behind parents applying to the US Central Authority.

Interpretation of article 13b: no return in case of “grave risks”Edit

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.

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

State parties

As of May 2018, the Convention has 98 parties. The last states to accede to the Convention were Tunisia and Jamaica in 2017.

International child abduction in Brazil comprises cases in which the removal of a child by one of the joint holders of custody or non-custodial or contested parents to Brazil in contravention of other laws of other countries and/or the desires of other custody claimaints. The phenomenon of international child abduction is defined in international law and legislated on by the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force in Brazil on January 1, 2000 and aims to trace abducted children, secure their prompt return to the country of habitual residence and organize or secure effective rights of access. In 2010 Brazil was accused by the US State Department of being non-compliant with the Hague Convention.

The International Centre for Missing & Exploited Children (ICMEC), a nonprofit global organization that combats child sexual exploitation, child pornography, and child abduction, has a regional presence in Brazil.

Brazilian non compliance with hague convention

Articles 12 and 13

Accusations that Brazil does not comply with the Hague Convention hinge on conflicting interpretations of Article 12 and Article 13 of the Convention. According to Article 12, “The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year […] shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment,” It is the second part of this article that is used as a defence in all Hague disputes in Brazil and one of the reasons why they are held up for so long. Brazilian federal courts routinely accept evidence from Brazilian abducting parents to the effect that the abducted child has become settled in his/her new environment and the U.S. State Department has claimed that Brazilian Courts erroneously treat Hague cases as custody disputes, unnecessarily delaying cases and demonstrating an unfair bias toward Brazilian citizens, especially mothers. In addition to this, Article 13 of the Convention states, “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views,” while Article 13(b) states that children should not be returned to their habitual residence if “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.” Brazilian abducting parents often present evidence to the court in the form of statements from the abducted child to the effect that they wish to stay in Brazil. A 1999 report by Prof. Nigel Lowe of the Cardiff University Centre for International Family Law Studies in the U.K. raised concerns about children not being returned to their place of habitual residence because of a misunderstanding of what the term ‘habitual residence’ meant (i.e., rather than referring to restoration of the status quo ante the abduction, abducting parents argue that it refers to the status quo and they are more likely to be able to argue this point if they can delay the judicial process long enough). Lowe states, “courts need also to consider any undue parental influence on the child, either through deliberate indoctrination by the abducting parent or simply by the natural inclination of many children to support a present parent against an absent parent.” The report stresses that abducted children’s wishes should not override the spirit and the intent of the Convention and implies that the part of Article 13 that affirm “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” should be considered null and void by making that part of the Article not have any use, because for children to be considered to have the maturity to decide where they want to be they should have reached the age of 16 – the cut-off point for Hague Convention cases.

The slowness of the Brazilian judicial process and the checks and balances built into the post-military-dictatorship Constitution of Brazil as a means of safeguarding human rights also create a long appeals process which means that once a child is abducted to Brazil it is likely that he/she will remain there in cases that the judges feel that this is the best solution for the child until they reach the res judicata. The hierarchical position of international conventions in the Brazilian legal system is less than the Constitution of Brazil and can not contradict it, which means that in cases where it is alleged that the convention is contrary to a constitutional principle, the convention may not be applied in whole.

The U.S. Department of State 2008 Report on Compliance with the Hague Convention says: “Brazil continued to demonstrate patterns of noncompliance with the Convention in its judicial performance. The USCA notes several instances during FY 2007 in which Brazilian courts treated Convention cases as custody decisions, rather than applying the principles of wrongful removal or retention laid out in the Convention. In two cases, Brazilian judges refused returns to the United States, citing the “best interests of the child” in accordance with Article 227 of the Constitution of Brazil. These decisions contradict the Convention, because the concept in the Brazilian legal system of “best Interests of the Child” is broader than the narrow concept described in the Convention, as the Preamble of the Convention declares that the interest of children is attained through their return to their country of habitual residence. In addition, the USCA notes that judges in some cases continued to demonstrate a bias towards mothers and towards Brazilian citizens. Further, the judicial process is excessively lengthy, with cases going on well beyond the six weeks mandated by the Convention.”

The U.S. Department of State 2009 Report on Compliance with the Hague Convention states: “In FY 2008, Brazil demonstrated patterns of noncompliance with the Convention in the areas of Central Authority performance and judicial performance. The Brazilian courts continue to show a troubling trend of treating Convention cases as custody decisions, and often deny Convention applications upon finding that the children have become “adapted to Brazilian culture.” It takes many months before a court receives a case to analyze and many more months before a court issues a decision. Brazil’s courts exhibit widespread patterns of bias towards Brazilian mothers in Convention cases. Brazilian courts continue to be amenable to considering evidence relevant to custody determinations but not relevant to the criteria to be applied in a Convention case.”

The U.S. Department of State 2010 Report on Compliance with the Hague Convention states: “During the reporting period, the United States experienced continued problems with Brazil’s compliance with the Convention. As a result, the USCA finds Brazil not compliant with the Convention in FY 2009. Continued compliance failures result from significant delays within the Brazilian judiciary, which continued to handle applications for return under the Convention as routine custody cases. Article 16 of the Convention specifically prohibits judges from considering the merits of the custody dispute between the parents.”

Reciprocity

The Hague Conference on Private International Law reports the case of a Brazilian woman and a Swiss man, the parents of two children born in Brazil in 1997 and 1999 who separated in 2004, but all continued to live in Brazil. In May 2006 the father abducted the children to Switzerland. On 10 October 2006 the local court in Switzerland ordered that the children be returned to Brazil. On 18 December the Swiss court of appeal upheld this order. The father then issued a legal challenge with both the federal tribunal and the Swiss supreme court. The order to return the children to Brazil was upheld on the basis of the provisions of the Hague Convention.

On April 24, 2009, the US Embassy in Brazil issued the following message to the Brazilian government: “Brazil and the United States have an international agreement about how to handle wrongful retention and wrongful abduction of children from their original countries of residence: The Hague Convention of 1980. Both countries are obliged to make sure that this treaty is enforced. The wrongful removal and wrongful retention of children from their homes, and the forced separation of parent and child is unnecessary and cruel. The United States has facilitated the return of seven children to Brazil since the Hague treaty entered into force between our two countries. We call on the office of the Secretary of Human Rights to support the return of all children wrongfully removed and wrongfully retained.”

Parental alienation syndrome

The phenomenon of parental alienation syndrome(PAS) and patterns indicating a dynamic of parental alienation by the abducting parent have been reported by the left-behind parents of children abducted to Brazil. Parental alienation is a phenomenon in which the abducted child displays an antipathy towards the other parent and in which this antipathy is actively encouraged by the abducting parent. In June 2010 it was reported that a constitutional amendment incorporating parental alienation syndrome into the Brazilian legal code would have a bearing on child custody cases.

Regardless of the reason, the impact of parental child abduction is significant. Parental child abduction may be the result of a parent feeling unjustly treated by the court process or frustrated with custody arrangements. It may be as a result of a contentious divorce or break-up, an effort to exert control over an ex-spouse or partner, or a way to deprive the other parent of access to the child. More complex reasons for parental child abduction may include one parent’s safety concerns for themselves, or their child. Whatever the reason, a parental child abduction sets in motion a series of events that can forever change the lives of the abducted child, their parents, as well as extended family and friends.

An American study 1 found that there are some common reasons why parents may choose to abduct their children including:

. The abducting parent feels ‘alienated’ or wronged by the legal system and custody arrangement.

. The abducting parent is a citizen of another country and feels the need to return to this country at the end of a relationship.

. The abducting parent wishes to cause harm and distress to the other parent.

. The abducting parent disregards authority, feels superior, and feels entitled to making ultimate decisions and/or overruling others.

. The abducting parent suffers from a mental illness which may include paranoia about the other parent.

. The abducting parent believes that their child was at risk of abuse or harm.

A parent who feels that the current custody or access arrangements are no longer in the child’s best interests or no longer meets the family’s needs, should be seeking legal advice. A parent can either ask the court to make a formal order, change an existing order, or enter into a written agreement with the other parent. A parent that does not go through the proper legal processes to settle disputes will likely face far more problems on custody and access than a parent who goes through the proper steps.

Parental child abduction is child abduction by a parent. It often occurs when the parents separate or begin divorce proceedings. One parent may remove or retain the child from the other seeking to gain an advantage in expected or pending child-custodyproceedings or because that parent fears losing the child in those expected or pending child-custody proceedings; a parent may refuse to return a child at the end of an access visit or may flee with the child to prevent an access visit or fear of domestic violence and abuse.

Child abduction may also occur when a child has been, is about to be or parent(s) fear that s/he will be, taken into care of the competent authorities, usually due to child endangerment proceedings.

Definitions and legal considerations

The U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention is required by the 1984 Missing Children’s Assistance Act Pub.L. 98–473 to report on child abductions and gathers statistics on, among other types of incidents, those where anyone with blood or legal ties to the custodial parent or the custodial parent’s romantic partner took or tried to take the child from the parent’s custody. The most recent version of this reportfound that rates of family abductions remained relatively stable, with an estimated rate of 3 children per 1,000 involved in an episode of family abduction in 2013 not significantly increased from the 2.7 children per 1,000 reported in 1999. Only 24.2% of family abductions surveyed in this study were reported to police and arrests were made in only 1.5% of these abductions. Only a small minority of family abductions involved attempts to take the child to another state or country.

Depending on the laws of the state and country in which the parental abduction occurs, this may or may not constitute a criminal offense. For example, removal of a child from the UK for a period of 28 days or more without the permission of the other parent (or person with parental responsibility) is a criminal offense. In many states of the United States, if there is no formal custody order, and the parents are not living together, the removal of a child by one parent is not an offense. In Australia the absconding parent, usually the mother, is awarded with the Family Court’s presumption of residency status quo after keeping the child for a minimum of three weeks.

Many US states have criminalized interstate child abduction. The first state to pass a parental kidnapping prevention law was California. Written by Larry Synclair, the father of a child abducted to Russia, the law was called the Synclair-Cannon Act. Texas soon followed. Teresa Laudedale, also a parent, litigated to prevent the abduction of her children, along with Cathy Brown. They made many enhancements to the Synclair-Cannon Act, which resulted in the creation of a prevention law for Texas. Lauderdale and Brown encouraged Brown’s former attorney to take it to National Conference of Commissioners on Uniform State Laws (NCCUSL); he is a Texas commissioner with NCCUSL. NCCUSL drafted a uniform state law dealing with parental abduction, UCAPA (Uniform Child Abduction Prevention Act). By 2010 about nine states had adopted UCAPA, while many more have pending legislation