by Jeremy D. Morley
The structure of the Hague Convention on the Civil Aspects of International Child Abduction requires a court in any case brought under the Convention to follow a step-by-step process in order to apply it logically and correctly. Those steps are as follows:
- First, the court must determine when the removal or retention took place. It cannot determine the habitual residence of the child without first deciding the relevant date as of which the habitual residence must be determined.
- The court must then determine the child's habitual residence immediately prior to that date.
- It must then ascertain whether the Convention was in force, as of the date of the wrongful removal or retention, between the country of habitual residence and the United States.
- Next, it must determine what rights the petitioner had at that time under the law of the child's habitual residence and whether or not those rights constitute “rights of custody” within the meaning of the Convention.
- The court must then determine whether the petitioner was exercising those custody rights at the time of removal or retention.
- It must determine whether the removal or retention breached those custody rights.
- It must determine whether any exceptions to the Convention have been established.
- If an exception is established, the court must determine whether to exercise its discretion to nonetheless return the child.
- Next, if the child is to be returned to its country of habitual residence it must determine the conditions under which the return shall be made.
- Finally, if a petition is granted, it must determine the legal fees and expenses, if any, to be paid by the respondent.
An application under the Hague Abduction Convention may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.
An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.
Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases should be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.
Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.
Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.
For more tips, see How to Win a Hague Convention Child Abduction Case.