ICARA - International Child Abduction Remedies Act

Some of our articles on international child abduction:

How to Win a Hague Convention
Child Abduction Case

Hague Convention Overview

Judicial Prevention of International Child Abduction

Habitual Residence

Acquiescence or Consent

When the Hague Convention Won't Help

International Parental Child Abduction

June/July, 2005
By Jeremy D. Morley

Judicial Prevention

When resolving custody issues between international parents, counsel should address the issue of international travel and should use their best efforts to prevent international parental child abduction. In my practice, I assist attorneys and clients around the world to prevent children from being abducted overseas and to seek their return if they have been abducted. Preventing child abduction is obviously far better than trying to recover abducted children from countries that do not recognize an obligation to reunite families. Unfortunately, clients often seek help too late, lawyers often do not recognize the severity of the situation or do not know what steps to take, and judges often fall back on concepts such as international comity to justify a refusal to issue the necessary orders.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) provides that a child who is habitually resident in one party country, and has been removed to or retained in another party country in violation of the left-behind parent's custodial rights, should be promptly returned to the country of habitual residence. Unfortunately, the Convention binds only a minority of the world's states and, even among its parties, the level of enforcement varies significantly. Certain defenses can be interposed in any Hague case, so return orders are not always available and return applications are often hotly contested.

Immediate action is obviously essential if a client reports that the other parent has threatened to take a child permanently to the parent's country of origin. Great concern should also be paid whenever a parent's country of origin is not a party to the Hague Convention or is non-compliant with its Hague Convention obligations. (We will discuss the concerns raised by abduction to non-compliant and non-party countries in the August Issue of New York Family Law Monthly.) In addition, even if a parent intends to take a child to a country that effectively enforces its Hague Convention obligations, or even if the parent's country of origin is such a country, counsel should consider whether or not that parent would succeed in defending or significantly delaying a future application to return the child pursuant to the Hague Convention.

The legal system can help to prevent international parental child abduction only if parents, lawyers and judges perceive the problem and then take quick and effective action. Parents must recognize the risk of allowing the other parent to take a child to his or her country of origin and must instruct counsel to act quickly to prevent or limit any such visits.

Lawyers must recognize the legitimacy of clients' fears of a child's potential abduction by the other parent; must ensure that custody agreements and orders are drafted to prevent or effectively limit such visits, and contain the most effective methods of ensuring compliance; and should seek injunctions to prevent threatened or anticipated abductions. When required, lawyers must marshal the evidence needed to establish that an apparently innocuous trip to a foreign location may create a serious risk that the child will not be returned.

Judges must take such issues seriously; should permit evidence of the fact that certain foreign courts will not provide the needed protection; should rule where appropriate that specific foreign legal systems will not provide any real protection for children or left-behind parents and will not return children who are wrongfully retained; and should issue firm orders that will prevent potential abductions.

Preventing Abductions to Compliant Hague Countries

Even if a parent's country of origin is one whose record of compliance with the Hague Convention is excellent, such as Britain or Australia, counsel should still be extremely careful in drafting a custody order, since the issuance and effectiveness of a return order if a child is taken to such a country is far from assured. Counsel should be familiar with the varying and often conflicting interpretation of key terms of the Hague Convention by courts around the world and with the defenses that may be raised in Hague cases internationally.

For example, the Hague Convention does not effectively protect "rights of access" to a child, as opposed to "rights of custody." A parent who has mere rights of visitation may not be able to rely on the Convention when those rights are violated overseas. This explains the admirable ruling of the Second Department in Welsh v. Lewis, 292 A.D.2d 536, 740 N.Y.S.2d 355 (2d Dept. 2002). The Family Court had denied joint custody based upon the acrimonious relationship between the parties. Since the English mother had indicated that she was considering returning to England with the children, the Second Department modified the custody order so as to prohibit the mother from removing the children from the United States without the father's consent. Furthermore, the Second Department expressed concern that, if the mother violated that provision, an English court would not be required to order the children's return under the Hague Convention because the father had no "rights of custody." The court therefore took the highly unusual step of awarding joint custody, with the children's residence remaining with the mother, so as to maximize the chances of success if a future Hague application should be required in England.

Article 3(a) of the Hague Convention restricts return orders to cases involving a violation of the applicant's "rights of custody" under the law of the country of the child's habitual residence. The interpretation of the fundamental term "rights of custody" varies from country to country. Although some countries have interpreted it so broadly as to even include rights of visitation (eg, Australia, New Zealand and Germany), other countries have taken a much more restrictive view (eg, Canada, as well as the U.S.).

In addition, a child who has reached a sufficient degree of maturity may be able to effectively veto a proposed return order if he or she independently expresses the desire to do so to the foreign court. Convention, Art. 13(b).

Furthermore, some courts will refuse to order the return of a child whose siblings are in the country to which the child has been wrongfully taken, if the siblings are not also being returned. See, eg, the English case of Re J (Children) (Abduction: Child's Objections to Return) [2004] EWCA Civ. 428, [2004] All E.R 72; but see the Canadian case of Chalkley v. Chalkley (1995) ORFL (4th) 422, lv. refused [1995] SCCA No. 33.

Accordingly, it is often necessary to draft custody orders to prevent a child from being taken even to a country that is a compliant party to the Hague Convention. In Charpie v Charpie, 300 A.D.2d 143, 752 N.Y.S.2d 291 (1st Dept. 2002), the parents were Swiss nationals and the mother wanted to continue living in New York, while the father wanted to live in Switzerland. The father had threatened to commence custody litigation in the Swiss courts, and had refused to sign a stipulation that he had previously signed 11 times before taking the children out of the country. The stipulation provided that New York was the children's habitual residence, that New York had sole and exclusive jurisdiction concerning them, and that it was in the children's best interests to return to New York. The First Department stated that that stipulation "effectively satisfied plaintiff's burden of proof under the Hague Convention" and that the father's refusal to sign it provided a strong signal of his possible refusal to return the children. Accordingly, the First Department affirmed an order designed to limit a potential abduction by requiring the father to give security before taking the children on vacation to Switzerland.

Conclusion

Child abduction by parents whose country of origin is overseas is a massive problem. Counsel need a full understanding of the international context of a potential abduction, and parents, counsel and the courts must take effective action before abductions occur.