In today’s changing world with the ease in communication and travel, international marriages and relationships have become a very common phenomenon and a frequent feature of our daily lives and interactions. The number of international marriages is at the highest it has ever been and it only seems to be constantly increasing. An unfortunate consequence of this trend is the increase in international divorces and separations. When divorce occurs, one of the most contentious issues is the custody of the children involved in the union. This development has also led to the increase in the number of child abductions and international child custody litigations.
Sometimes, as this unfortunate scenario plays itself out, one of the parents decides to wrongfully abduct their child and move with them to a foreign country. The other parent is then forced to wage a battle for the return of his/her child. Child custody battles are ordinarily messy, but when both parents are from different countries, one parent relocating to another country with the children only adds to the complications. Where abduction occurs, the relevant law that deals with such situations is the Hague Convention.
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 1980/1983 and entered into force between the signatories on 1 December 1983. Essentially, the Convention was drafted to help ensure that children who were abducted from their home country (“country of habitual residence”) are immediately returned. The Convention seeks 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 main goal of the Convention is to preserve and maintain whatever status quo or 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 or favourable court. The Convention applies only to children under the age of 16. It is important to note that the Hague Convention only applies to “signatory” countries. As of March 2016, 94 states are party to the Convention. In 2016, the Philippines also acceded to the convention.
Abduction, Wrongful Removal or Retention
The Hague Convention on Child Abduction 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.
It is very clear that from the Convention’s standpoint, that the removal of a child by one of the joint holders or parent 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.
What is Habitual Residence?
There is no exact definition for the term “habitual residence” and the Hague Abduction Convention does not define the term either but it can be argued that it is not intended to be a technical term. It is safe to contend that the courts should broadly read the term in the context of the Convention’s primary purpose to discourage unilateral removal of a child from that place in which the child lived, which should generally be understood as the child’s ordinary residence. The courts in determining this term should look at the child’s ordinary residence in making such a determination. Basically, the critical question is: where was the child living prior to the abduction?
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. This is 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. The Hague Abduction Convention mandates the 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.
Procedures under the Hague Convention
The Hague Abduction Convention does not create or alter any substantive rights and does not require a court to consider the merits of any custody dispute but rather to only determine which country such issues should be heard. Basically, the Convention requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody arguments, but should only decide the country in which those issues should be heard. 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 mandates 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 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 filing of a Hague Petition or proceedings. It is important to note that the return of the child is to the member country rather than specifically to the left-behind parent.
Defenses to claims of wrongful removal
Under the Hague Abduction Convention, there are defenses to a claim of wrongful removal or abduction. The Convention however limits the defenses against return of a wrongfully removed or retained child. To defend against the return of the child, the defendant must establish to the degree required by the applicable standard of proof generally determined by the lex fori i.e. the law of the state where the court is located. Some of these defences are:
i. that the Petitioner or parent seeking the return of the child was not in fact exercising custody rights at the time of the removal under Article 13; or
ii. That Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or
iii. that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or
iv. that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or
v. that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b); or
vi. that return of the child would subject the child to violation of basic human rights and fundamental freedoms under Article 20.
Discretionary powers of courts to return under Article 13b
It is important to note that though 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 Article 13(b) but it merely changes from mandatory to discretionary.
Non-compliance with Hague Abduction Convention
Though 94 states are signatories to the Hague Abduction Convention, compliance with the ideals and tenets of the Convention have sometimes been problematic. 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.” Though these countries are signatories to the Convention, they still have issues with compliance with the Convention. Beyond signatory states, this problem is also much more pronounced where the case and parents in question involve countries that are not signatories to the Hague Convention.
The case of Sean Goldman, a four-year-old boy abducted to Brazil, gained widespread media attention after the abducting mother died during the birth of another child. The mother’s family, resident in Brazil, fought Sean’s American father in Brazilian courts to gain custody over Sean and keep him in the country. Ultimately, though, the Brazilian Supreme Federal Tribunal decided the case constituted child abduction under the terms of the Hague Convention, and had Sean sent back to America to live with his father.
Henry Brookman, a founding partner of Brookman Solicitors writing in the Daily Telegraph on 20 September 2012 in an article titled ”How international issues further complicated child custody cases” stated that, while most western countries abide by the Hague Convention, others do not. He cited the example of Saudi Arabia where the abduction of a child from the UK to Saudi Arabia is not a crime under Saudi law unless there is already a Saudi court order regarding custody of the child. But if a parent is entitled to custody according to a Saudi court decision, then the Saudi courts would consider parental child abduction a criminal offence. It is harder for child abduction cases to be resolved between jurisdictions like Saudi Arabia and those countries operating under the Hague Convention.
How do courts determine whether to allow an international relocation?
In deciding whether to authorize a child’s relocation to a foreign country, US courts will try to determine the best interest of the child, considering the same factors they normally consider in domestic move-away cases (these factors depends on the laws of states that has jurisdiction to hear the case). The best interest of the child is also an uppermost consideration in almost all other jurisdictions around the world. In addition, most state courts in the US and courts in most jurisdictions will also consider several additional factors, including:
I. the cultural conditions and practices in the foreign country
II. any potential visitation difficulties for the parent that gets left behind
III. jurisdictional issues that may make the enforceability of the domestic custody and visitation orders problematic (meaning the extent to which the foreign country would enforce the left-behind parents visitation or rights to access the child), and
IV. whether or not the proposed foreign country is a signatory to the Hague Convention (however, the fact that the proposed country is not a signatory does not automatically mean that the request to relocate would be denied).
Henry Brookman writing on the role of the courts in allowing relocation states that:
“A marriage breakdown will often play a large part in an expatriate’s decision to relocate with many people, particularly mothers, citing the need to have family and friends close at a difficult and changeable time as their reason for this. A key English legal decision – K v. K – laid down the markers for permission to be given on whether a parent can relocate with their child. In this case, the English Court of Appeal ruled that if parents share the care of their children, the courts will be far more reluctant to allow one parent to relocate with their child away from the other parent. The greater the part the ‘secondary’ carer (typically but not exclusively the father) plays in the child’s life, the greater the damage to the child’s life through relocation – this is the principle the courts are now adhering to.”
Henry Brookman further stated that Expatriates going through divorce proceedings who feel that relocation and custody issues could be raised further down the line should think long term and avoid the instinctive reaction to rush back home. Most countries have a mediation system that allows for parents to use an impartial mediator to reach an amicable agreement about their child’s future. The welfare of the child is the overriding concern in the family courts so even if mediation is not originally chosen, the courts will still encourage parents to work together to reach a mutual decision. In the case of K v. K, the court urged the couple to explore living arrangements in the UK before a planned future move to Canada.
In conclusion, it is important to point out that courts in almost all jurisdictions would consider the best interest of the child in dealing with cases of international child custody or child abduction. The overriding test is the welfare of the child looked at on a case by case basis. Parents or parties involved in these disputes should definitely contact an experienced custody attorney or lawyer for advice on how to protect their parental rights. We would also like to call on States that are not yet signatories to the Hague Child Abduction Convention to as a matter of urgency and responsibility become signatories to this Convention as this would engender uniformity in the legal framework and practice of international child custody and abduction cases.