Sweden and International Child Abduction

By Jeremy D. Morley

This office handles many international child abduction and international child custody cases that concern Sweden, always acting with colleagues in Sweden as appropriate.

The Hague Abduction Convention has been in force between the United States and Sweden since 1989.

Initially, there were special problems and challenges in securing the return of children who were abducted to Sweden, but those issues have now been overcome.

All cases in which the return of a child from Sweden is requested under the Convention are handled in Stockholm by the Stockholm District Court.

There are separate procedures which apply in the case of abduction of children within the European Union.

Although Sweden complies with its obligations under the Convention, that does not mean that children who are taken to Sweden, or retained in Sweden, will always be returned under the Convention.

A left-behind parent must establish in any Hague Convention case that the child has been removed or retained away from the country of the child's “habitual residence.” That term is not defined in the Convention and has been the subject of countless cases over the past decades. The determination of the habitual residence of a child is often extremely uncertain, especially when the child has spent time in different countries.

Left-behind parents must then establish that, under the law of the habitual residence, they have some kind of right of custody in respect of the child. In many cases, that issue requires a sophisticated analysis of the laws and court orders in place in the country of habitual residence.

There are then six exceptions that the Convention provides as discretionary grounds that a Swedish court might use to refuse to return an abducted child.

The first is that the left-behind parent consented to the child living in Sweden. This is often far more complicated than might be expected. For example: Was there permission for a visit of limited duration? Was the consent conditioned? Was the consent retracted? These questions, and may other, raise tricky issues.

The second exception is that of “acquiescence.” This is similar to consent, but it applies to situations in which a petitioning parent accepted the propriety of the child remaining in Sweden after the date of the allegedly wrongful removal or retention.

A third exception can be raised only if the case under the Convention is not commenced in Sweden until one year has passed since the date of the abduction or wrongful retention. In these situations, if the parent in Sweden can establish that the child has become settled in the new environment in Sweden, then the Swedish court need not return the child.

A fourth exception exists if a child who is of sufficient age and maturity objects to being returned to the place of the habitual residence. Courts in Sweden generally hold that a child who is about 12 years old is normally old enough to be able to object on this basis. The court must then determine whether the child is merely voicing a preference for one place over another, which will be insufficient, or is independently objecting for understandable and mature reasons to going back to live in the country of prior residency.

Another exception exists if it would contravene fundamental principles of human rights to return the child to the habitual residence. I am not aware of any case in which a Swedish court has refused to retain a child on account of this exception.

The final exception is the one that often causes great difficulty. This is the exception set forth in Article 13(1)(b) of the Convention that there is a “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.” Since this provision contains ambiguous language, it is often raised in opposition to a Hague Convention case. It is my impression that the Swedish courts generally handle these issues well and that they do not usually allow an unduly broad interpretation of the exception to be employed.

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