By Véronique Malka
Barrister & Solicitor, Ontario, Canada
Foreign Legal Consultant, New Jersey
Every parent has, at some time or another, experienced the painful fear of having their child abducted. An impromptu game of hide and seek by your child in the aisles of a supermarket is enough to trigger panic in any parent. Yet, most of us, thankfully, do not have to fear our child disappearing at the hands of the one person we ought to be able to trust most: The other parent.
As a mother, divorcee, and family law attorney in Canada, I found myself naturally and deeply concerned about the all too frequent occurrence of a child being wrongfully taken away by a spouse. In 1999, I began to represent clients in cases involving parents who had wrongfully removed (or retained) children from their habitual place of residence, following a bitter separation or during an access visit.
Aiming to remedy and deter this problem, the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), T.I.A.S. No.11, 670 1343 U.N.T.S. 89, 51 Fed. Reg. 10, 493 (app. B), was concluded on October 25, 1980 and entered into force on December 1, 1983. It applies only as in between States that have ratified it ("contracting states"). This international treaty offers an administrative and judicial mechanism to assist parents seeking the return of their abducted children. As stated in its preamble, the object of the Convention is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of habitual residence, as well as to secure protection for rights of access." The 2005 Report on compliance with the Hague Convention issued by the Bureau of Consular Affairs, U.S. Department of State, claims that over 50% of abducted children are returned through use of the Hague Convention.
By ratifying the Convention, contracting states agree that there is a "wrongful removal" or "wrongful retention" when a child of less than 16 years of age is taken to, or retained, in a country by one parent, in violation of the other parent's custodial or access rights. Each member state must set up a Central Authority in charge of administering the Convention. In Canada, it is the Office of the Attorney General, and in the U.S., the Department of State is so designated. Any claim for abduction by a parent is directed to this branch of government, which in turn contacts the Central Authority in the country where the child is located. The designated Central Authority must also make sure that an attorney is given the case on an expedited basis to bring a Hague proceeding to a local court. The language of the Convention is clear: The Court faced with an application for the return of a child to his habitual residence must return the child immediately (unless certain very specific exceptions are met - article 13, as interpreted by the vast body of case law).
Nevertheless, and despite its noble intentions, the Convention's mechanism is not without problems. Most evident are the delays inherent in the administrations of the respective Central Authorities, which take time to open files, locate and contact the abducting parent, find and designate attorneys able and available to handle such special and urgent cases, and finally, the delays seen too often in the court system itself, which is already overloaded with contested and pressing family law matters. Often, the judges hearing Hague cases are themselves not sufficiently familiar with the nature and operation of the Convention, and need to be briefed by counsel, with caselaw and authorities, as to the special treatment that these cases deserve in the court system, very different from daily family law disputes heard in their forum.
Less obvious are the concerning time limitation periods built into the Convention. For example, Article 13 provides an exception to the prompt return rule where the court finds that "the child has attained an age and degree of maturity at which it is appropriate to take account of its views." Therefore, in cases where too much time elapses between the wrongful retention and the hearing of the Hague case, a child will naturally become older and come to qualify for this exception. Accordingly, because of these discrete time concerns built into the Convention, a lawyer's prompt action in these cases is of foremost concern; lawyers who are not available to put such a case ahead of all others, or who are not well versed in Hague matters, should swiftly refer out the case to a Hague attorney. Time is definitely of the essence in these matters, even more so than in local custody proceedings concerned with status quo.
Although one of the stated objectives of the Central Authorities is to "discover the whereabouts of a child" abducted, in practical reality, there is no automatic assistance in cases where the left-behind parent cannot pinpoint the exact location of the abducting parent. In addition to a referral to the Central Authority, recourse must be had to local and federal police forces, who in turn, have their own timely intake and search procedures. There are organizations like Child Find of America Inc. which can assist in locating the disappearing parent and child, but the legal and judicial recovery system is not easily, nor quickly, triggered by the Convention in cases of an unconfirmed abduction.
Currently, 75 countries have ratified the Hague Convention. Several countries seem to add themselves to the list each year. Yet, if a child is wrongfully taken to a country that has not signed on (Grenada, for example), one can anticipate tremendous difficulties recovering that child through the normal legal channels. Often, the abducting parent will commence a custody proceeding in the non-contracting country to change the original status quo, with allegations by affidavit justifying the change of jurisdiction. Other times, the parent left behind may seek an immediate local order, but then needs to have it transferred to the non-contracting country for enforcement. Good luck. Chances are that local courts in the non-contracting country will determine the matter through the usual "best interest of the child" analysis, which, with the passage of time caused by administrative delays and the credence unfortunately given to unfounded allegations by the abducting parent, will greatly increase the chances of a custody reversal.
With the rise of the divorce rate in America and the high incidence of child abductions worldwide, lawyers should become better versed in the workings of the Hague Convention and promote its application in their jurisdiction whenever possible. When advising acrimonious separated parents about mobility and travel rights where their children are concerned, I often include terms in their agreement which trigger the automatic application of the Hague Convention to their case in the event of a non-return. We look forward to more countries ratifying the Convention so as to make its application uniform worldwide.
Acknowledgement and thanks to the Law Society of Upper Canada for permission to re-print in part from a 2001 publication by Ms. Malka in the Ontario Gazette. For more questions concerning The Hague Convention or other international legal matters, please contact Ms. Malka at NPZ Law Group,Veronique_malka@visaserve.com. NPZ Law Group is a premier immigration law firm with offices in New York and New Jersey. Please call 201-670-0006.