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Using the Hague Abduction Convention

Does the Hague Abduction Convention Apply to My Case?

YES:

• Your child was abducted to a country that is a party to the Hague Convention ( view country list); and
• Your child is younger than 16 years old;

NO:

• Your child was abducted to a country that is not a party to the Hague Convention; or
• Your child is older than 16 years old;
  

Background Information

For left-behind parents seeking the return of their children, one of the biggest sources of frustration is that courts in many other countries do not take into account the prior decisions made by courts in the United States.  A custody order in the United States can be meaningless abroad.  When confronting this challenge, keep in mind the following three things:   

• Each country is a sovereign nation. Sovereign nations cannot interfere with each other's legal systems, judiciaries, or law enforcement;
• Generally every country only has jurisdiction within its own territory and over people present within its borders; and
• Although court orders from other countries may be recognized in the United States under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), this is rarely true in reverse - U.S. court orders are not generally recognized in other countries.

In part because of these difficulties, twenty-three nations agreed to draft a treaty about international parental child abduction at the Hague Conference on Private International Law in 1976.  The treaty was to be a way for nations to work together to solve abduction cases.  Between 1976 and 1980, the United States was a major force in preparing and negotiating the 1980 Hague Convention on the Civil Aspects of International Child Abduction  (Hague Abduction Convention).  And on July 1, 1988, the Convention came into force for the United States.

The Hague Abduction Convention is the primary civil law mechanism for parents seeking the return of the children from other treaty partner countries.  Countries that are party to the Convention have agreed that a child who was living in one Convention country, and who has been removed to or retained in another Convention country in violation of the left-behind parent's custodial rights, shall be promptly returned.  Once the child has been returned, the custody dispute can then be resolved, if necessary, in the courts of that jurisdiction. The Convention does not address who should have custody of the child; it addresses where the custody case should be heard.

To date, the United States partners with 70 other countries under the Hague Abduction Convention (view the list of Hague Abduction countries).  Each country that is party to the Convention has designated a Central Authority, a specific government office, to carry out specialized Convention duties.  Central Authorities communicate with each other and they assist parents in filing applications for return of or for access to their children under the Convention. 

The Central Authority for the United States is the Department of State's Office of Children's Issues.

How to Use the Hague Abduction Convention

1. Fill out an Application:  In order to use the Hague Abduction Convention as a possible solution, you will need to file an application.  Your application will specify whether you seek the return of your child or access to your child.  This application contains information such as the habitual residence of the child, the date of the wrongful removal, and your custody agreement, among other items. 

2. Submit the Application:  Once you have completed the application, we recommend that you submit it to our office (although you may submit your application directly to the Central Authority or foreign court of the country where the child is believed to be held).  We will review your application to ensure that it is complete and that your request complies with the requirements of the Convention before forwarding it to the foreign Central Authority. 

3. Attend Hague Proceedings:  Once your application for return or access has been submitted to the foreign Central Authority, that foreign Central Authority is responsible for processing it.  Operations and procedures implementing the Convention differ in each country party to the treaty.  For this reason, our case officers—who are experienced with the various countries' proceedings—are available to help you understand the process for the country to which you submit your application.

Sometimes just filing the application is sufficient to persuade the taking parent to return the child.  The Convention has proven to be effective, and as a result its reputation is strong.  When an abducting parent learns that a Hague application has been or will be filed, he / she may return the child voluntarily to avoid further civil action under the Convention.  The majority of Hague cases go to trial, however, and require that the left-behind parent retain an attorney in the country where the child is located to petition the court for return. 

If the abducting parent does not voluntarily agree to return your child, you may want to attend a legal proceeding in the foreign court about your application for return.  Our case officers are prohibited from acting as an agent or attorney in legal proceedings arising under the Convention, however we will provide information on an ongoing bases.  Please see our flyer on Retaining a Foreign Attorney for guidance on obtaining legal counsel to prepare for legal proceedings in a foreign country.

Conditions to Filing a Hague Application -- What You Must Prove to Succeed

The Convention does not apply to every international parental child abduction case.  Several parameters must be met in order to file an application for return under the treaty. 

For your case to have merit, you must show:

Exceptions to a Country’s Obligation to Return a Child

Depending on the facts of your case, there could be a treaty obligation for a Convention country to return an abducted child or grant access to the child, unless one of the following exceptions apply:

• There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;
• The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child's views (the treaty does not establish at what age children reach this level of maturity – that age and the degree of weight given to children's views varies from country to country); or
• The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Note: Interpretation of these exceptions varies from country to country.

Criminal Charges and the Hague Abduction Convention

The Convention is a civil legal mechanism for return and does not provide for criminal sanctions.  As such, criminal charges may have an unintended negative effect on the operation of the Convention.  With the Convention, the emphasis is on the swift return of a child to his or her place of habitual residence where the custody dispute should be resolved. Courts in some countries, including the United States, have denied return of children solely because the taking parent would be arrested if they accompanied the child home.  Many of these courts, both in the United States and abroad, have held that the arrest of the parent would expose the child to psychological harm under Article 13(b) of the Convention.  This varies by country and the type of criminal charge, but if you are considering pressing criminal charges, we recommend first contacting our office to discuss potential benefits and consequences..

Children Abducted to the United States

The Hague Abduction Convention applies to children abducted to and from countries party to the Convention.  If a child is abducted to the United States from one of our Hague treaty partners, the parent who is left behind may apply for return under the Convention.  Even if the child was born in the United States, if the child is now found to be "habitually resident" in another country the child may be ordered to return to the country of habitual residence under the Convention, provided the case meets the requirements of the Hague and the child's country of habitual residence is a signatory.

On April 1, 2008, the Office of Children’s Issues assumed the handling of all “incoming” Hague child abduction cases – that is, abductions of children to the United States from countries that are partners under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.  As the federally designated Central Authority for the Convention, we are pleased that all Central Authority work is now handled within our office.  If your child has been wrongfully taken to the United States, or wrongfully kept in the United States, please view our information about incoming Hague cases.  

IMPORTANT REMINDER: The Hague Abduction Convention focuses on issues of residency, not citizenship.  The Convention does not confer any immigration benefit.  Anyone seeking to enter the United States who is not a United States citizen must fulfill the appropriate entry requirements, even if that person was ordered by a court to return to the United States. This applies to children and parents involved in any child abduction case, including a Hague Abduction Convention case.

When a taking parent in a Hague Abduction Convention case is ineligible to enter the United States under United States immigration laws, the parent may be paroled for a limited time into the United States through the use of a Significant Public Benefit Parole in order to participate in custody or other related proceedings in a United States court.

Settling out of Court | Using the Hague Abduction Convention | Using a Foreign Country's Civil Justice System | Pressing Criminal Charges | Applying Country Specific Information

 

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