In the past thirty years, three Hague Children’s Conventions have taken place to address the protection of children in at-risk border disputes. The first convention, entitled “Convention on the Civil Aspects of International Child Abduction”, was held in 1980 with the goal of enabling participating countries to cooperate in returning children who have been wrongly removed from their residences to another country. The second convention, entitled “Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”, was held in 1993 with the goal of regulating international adoptions. Finally, the third convention, entitled “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children”, was held in 1996 with the goal of tying the previous conventions together with rules pertaining to parental responsibilities and public measures of protection for children.
The intent of the Hague Conventions was to address issues pertaining to children caught in the turmoil of broken relationships, disputes over custody and relocation, and international parental abduction. The conventions have issued uniform rules to participating countries to address which country’s authority takes precedence in border disputes involving children. For instance, a judge may issue a temporary protective order to return a child to the country from which he or she was taken. The Hague Convention rules make such orders enforceable in both the country from which the child was taken and the country into which the child was taken, so long as both countries involved have implemented the uniform rules. The rules also set forth procedures to ensure prompt return of children to their home country. The rules avoid conflicting decisions between countries, giving the primary decision-making responsibility to the authorities of the country in which the child has his or her habitual residence, which generally means where the child had been living and was settled.
A Hague Convention application should be handled by an attorney familiar with the procedures and evidentiary requirements necessary to bring about a quick return of the child to its home country. Such an application should be made as soon as possible after a child is taken across an international border, away from his or her habitual residence, without the consent of a parent with rights of custody; the longer the child is in the new environment across an international border, the less likely a court will be willing to return the child to its habitual residence. Acting quickly also demonstrates that the parent from whom the child was taken did not agree to the child’s removal from its habitual residence.
Normally, the child must be promptly returned to his or her habitual residence unless the return would cause a grave risk of harm to the child, such as physical or psychological harm or would otherwise place the child in an intolerable situation. An example of such a situation is when a parent has fled a country with the child to escape severe physical abuse inflicted by his or her spouse.
A parent whose child has been wrongfully removed or wrongfully retained across an international border should contact the U.S. State Department’s Office of Children’s Issues, which is responsible for administration of the Hague Convention rules in the United States. Additionally, if the parent already has a custody order in place, the parent should seek enforcement in a court of appropriate jurisdiction. If no custody order has been issued, the parent should petition for custody of the child. The parent may also request the assistance of state and federal prosecutors to institute criminal proceedings against the parent who removed the child across an international border without consent.
