By Véronique Malka, FLC & Robert Kornitzer, Esq.
Every parent has, at some time or another, experienced the 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.
Matrimonial lawyers are, too frequently, faced with cases of a child being wrongfully taken away by a spouse or former spouse. Unhealthy marriages, separation or divorce litigation can trigger a parent to wrongfully remove (or retain) children from their habitual place of residence. We often see this happen after a visitation period such as summer vacation or holidays. Israel used to rank highest as the country wherein children were allegedly taken or retained by an absconding parent (currently the countries listing highest are India and Mexico). Abduction cases requires quick action, smart legal strategy, and a solid knowledge of abduction law.
The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) was concluded in 1980. It is an international treaty with a mechanism to assist parents seeking the return of their abducted children. According to the U.S. Bureau of Consular Affairs in 2021, 105 abduction cases were resolved by use of the Hague Convention, with the return of 147 to the U.S.A.. An additional 126 cases were resolved outside of use of the Hague. While these numbers may seem low at first glance, each child is like an entire universe and these numbers are still far too high, given especially that they constitute only abductions from the USA.
The Hague Convention does not use the term “abduction.” Rather, it refers to a “wrongful removal” or “wrongful retention.” This occurs 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. 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 per Article 13, as interpreted by a vast body of caselaw). Courts have only 6 weeks to apply the Convention, so the process is intended to be fast.
The Hague’s mechanism is not without problems. There are delays in the administration of the respective government-created bodies called Central Authorities, in each Hague state, tasked with administrating the cases, including a delicate intake process, locating and contacting the abducting parent, and designating qualified attorneys to handle such urgent cases. There are also delays in the court system itself, already overloaded with contested and pressing domestic family law matters. Sometimes, judges hearing abduction cases are not always as familiar with the Hague as they are with domestic family matters and may need to be guided by competent counsel.
There are exceptions to the mandatory prompt return of a child, too often raised as a strategy to oppose the mandatory Hague return. Article 13 of the Convention allows the court to consider the views of a child of a certain maturity, so in cases where too much time elapses between the abduction and the hearing of the case, a child may naturally become older and qualify for this exception. A lawyer’s prompt action is thus essential, and if not possible, a referral to a qualified Hague attorney is key.
Although Central Authorities are supposed to “discover the whereabouts of a child,” in reality there is no automatic assistance in cases where the left-behind parent cannot pinpoint the exact location of the abducting parent. Recourse must be had to local and federal police forces, who in turn, have their own intake and search procedures. There are organizations like Child Find of America to assist in locating the disappearing parent and child. Some countries pose a greater risk of non-return as they have no protocol (e.g. Russia, the UAE, the West Bank, and St. Vincent). If a child is taken to a country without a Hague protocol, one can anticipate tremendous difficulties recovering that child through the normal legal channels. When the Hague does not apply, skilled abduction lawyers must know how to engage the assistance of embassies and foreign counsel to legally orchestrate the extraction of an abducted child. This is no small task.
At times, the abducting parent will commence a custody proceeding in the non-Hague 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 increased mobility of parents with remote work options, family lawyers should become better versed in the workings of the Hague Convention. When advising acrimonious separated parents about mobility and travel rights where their children are concerned, we include terms in their agreement which trigger the automatic application of the Hague Convention to their case in the event of the non-return of a child. We look forward to more countries ratifying the Convention to make its application uniform worldwide.