About the Hague Convention

What is it?

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty which seeks to protect children from the harmful effects of abduction or retention across international boundaries by providing a procedure to bring about their prompt return to their home (country of “habitual residence”).

The Hague Convention is not concerned with the merits of a custody case (see Article 19). Criticisms or complaints about the custodial parent, or the terms of a custody award, are matters to be dealt with by the jurisdiction of the child's habitual residence. Save in exceptional circumstances, the Convention is based on the assumption that it is in the child's best interests to be returned quickly. This ensures that the abducting parent cannot profit from the abduction or retention by choosing one jurisdiction over another (i.e. “forum shopping”) in the hope of reversing previous custody decisions. The Convention also seeks to secure protection for rights of access (see Article 21).

Full text of the Convention

Who has signed up and when?

The Hague Convention was first concluded in October 1980 and it came into force in 1986. Today, over 70 countries are members of the Convention. The Permanent Bureau in The Hague oversees the activities of the Convention but it has no regulatory powers over individual countries. It cannot assist you or interfere in your case. The date on which the Convention came into force between your country and the country to which your child has been taken is important, as the Convention will not apply if your child was taken before that date.

Date of Accession or Ratification

How does it work and what should I do?

Each country that is party to the Convention has a designated government office, known as the “Central Authority”. Its duty is to send and receive requests for the return of children or the enforcement of orders. Central Authorities are also bound to provide information about the laws of the country where your child has been abducted to or retained in and help you with the legal process. In most Hague Convention countries, the Central Authority will apply, on your behalf, to the Central Authority of the country where your child has been retained or abducted.

GET IN TOUCH WITH YOUR CENTRAL AUTHORITY IMMEDIATELY.

Directory of Central Authorities

What should the Central Authority do for me ?

Act as your primary point of contact
Liaise with law enforcement agencies
Provide information on which court orders you will need
Assist you in contacting local officials in foreign countries or contact them on your behalf
Put in place measures to prevent further harm to your child
Help you in filing your application for return or access
Keep you informed of the progress of your application
Provide you with information on the country to which your child has been taken, including its legal system
Provide you with a list of competent lawyers
Some authorities will translate documents for you free of charge

What is it not able to do for me ?

Intervene in foreign proceedings
Enforce orders made in your home country abroad (custody and access orders are not automatically enforced abroad)
Usually not be able to act as your lawyer or represent you in court

You can of course apply directly to the courts of the country where your child has been retained or taken to — but we would not advise you to do so. Your Central Authority is there to help you and expedite the process.

What should the Central Authority of the country where my child is in do for me?

Locate the whereabouts of your child
Try to secure a voluntary return
Initiate or facilitate the legal or administrative proceedings in view to obtaining the return of your child, or the securing of your access rights
Give you lists of local lawyers
Give you information and advice on local laws and customs
Provide or facilitate the provision of legal aid (in those countries where it is available)

The extent of the Central Authorities' roles in facilitating proceedings will vary from country to country. Check their individual Website to find out more.

What can I apply for?

Under the Hague Convention you can make an application for a return if:

Your child has been taken to another signatory country, in breach of your custody rights, OR
Your child has been retained another signatory country, in breach of your custody rights, OR
You have not been able to secure access to your child who is living in another signatory country

What conditions do I need to meet?

A. For a return:

Your child is not yet 16 years old
Your child was habitually resident in the country in which you make your application
You have rights of custody *
You were exercising your rights of custody
Your application is made within one year from the date of the removal or retention
You did not consent to the removal or retention of your child

If one of these requirements is not met your child will not be returned under the Convention. Be very careful.

* You may be required to have a court order — or legal agreement — giving you rights of custody (this may include orders made after the abduction, provided that those orders also state that the removal of your child was unlawful). In most countries, when there is no custody decree (no legal separation or divorce orders) prior to an abduction or retention, both parents — if married — are considered to have equal legal rights to their child. As long as the retention or removal is unlawful, the Convention will apply. In most member countries a mother automatically has parental responsibility of her child from birth, the law varies about the status of unmarried fathers

B. For securing access rights:

Your child is not yet 16 years old
You have been denied access to your child

How will I pay for my application ?

Under the provisions of the Hague Convention, you are not required to make any payment towards these costs. However, some countries, due to the cost of implementing the legislation, charge a fee and you may be required to make a contribution. Whether you can obtain legal aid or not will depend on the country in question.

How long do you have to file an application ?

You must file an application as soon as possible. Speed is critical. Article 12 of the Convention states that you can lodge an application within one year of the date of removal or retention. Be active in the search of your child. Obtain the help of the Police and Interpol. Make sure that they upload your child’s picture and information onto the Missingkids Website. If your child is found after one year, request that the time limit be extended. But be warned that the court may decide that the child has now settled in his or her new environment and refuse a return.

How long can I expect the proceedings to last?

The Hague Convention imposes an obligation on member states to effect the "prompt" return of children wrongfully removed or retained (Article 11). This is 6 weeks from the start of proceedings. If it takes longer, you have the right to ask why.

On what grounds can my application be rejected ?

Your child was not habitually resident in the country where you made the application for a return or he or she is 16 years old or older (Article 4).
Your child has been in the foreign country for over 12 months and is settled in his or her new environment (Article 12).
You did not have "rights of custody" (either jointly or alone); or were not exercising these rights at the time of the removal; or had agreed to or "acquiesced" in the removal or retention (Article 13 a).

Exceptions and Pitfalls

The court of the country where you child is may reject a return if it deems that:

Your child would be exposed to a "grave risk of physical or psychological harm" or put "in an intolerable situation" if sent home.
Your child "objects to being returned" and is old and mature enough to have his or her views taken into account.
You were not exercising rights of custody or you consented (“acquiesced”) to the removal or retention of the child.

Be prepared: the abducting parent may oppose the return of your child using one of these exceptions.

Article 13 (b) — Grave Risk and Child's Objection

The Article 13 (b), paragraph 1, "grave risk" defence should only be upheld if a child is returned to a zone of famine or war or to a situation of serious abuse and neglect. It has caused few return applications to be refused.

The Article 13 (b), paragraph 2, "child's objections" defence is more problematic. Member States have different ways of taking evidence and hearing cases. Some deem it inappropriate to interview young children. They are aware of the risk of indoctrination by the abducting parent. In those cases, returns will be refused only in an exceptional case.

Other countries regularly ask children to participate in court hearings. This may draw out proceedings and your child's evidence may be negatively influenced against you. Where possible, you should establish contact with your child, and your Central Authority should press for speedy proceedings.

Speed of proceedings — The merit of the Convention is in the speed of its proceedings (Article 11). Lengthy proceedings can jeopardise your chances of having your child returned. This gives the abductor more opportunity to influence or indoctrinate the child against you (for the purpose of Article 13 b). In addition, the longer your child remains in the foreign country, the more settled he or she would be (Article 12).

Make sure that your lawyer and the Central Authority monitor your case well. Remember that possession can turn out to be 9/10th of the law. So don’t be afraid to press them. These government departments may lack a sense of urgency, especially in countries where parental abduction is not considered a crime.

Enforcement of orders — Enforcement of orders cannot be guaranteed. Some countries have no effective enforcement mechanisms. Others have separate proceedings for the return order and for its enforcement. This can cause delay and lead to the non-return of your child. In some countries, non-compliance with an order is met by severe sanctions; in others with attempts to mediate. Rights of appeal against an enforcement order can differ as well. In some countries appeals can take several months.

Habitual residence — The concept of habitual residence is not defined. The period you need to live in a country to be habitually resident varies from country to country. In some countries, habitual residence can be established in a matter of weeks. The abducting parent can thus benefit by applying for a change of residence soon after the abduction has taken place. This may cause a return order to be refused.

Securing Access Rights - Article 21

The Convention seeks primarily to secure the 'prompt' return of children wrongfully removed or retained. But Article 1 makes it clear that the objectives also include securing "protection for rights of access" and the "effective respect" for such rights. Furthermore, Article 7 states that the Central Authorities are bound by the obligations of co-operation to promote the peaceful enjoyment of access rights. The drafters of the Convention recognised that the issue of contact can have a link to the phenomenon of abductions; and that some abductions are triggered by parents who have been unable to gain access to their children living abroad.

In other words, an application for access can be lodged under Article 21 in the same way as an application for a return. But as a whole, if the two countries concerned are members of the European Union and if you have an existing order granting you access rights, the European Convention on the mutual recognition and enforcement of orders, Brussells II bis, may be a more efficient means for you to have that order enforced.