International child abduction under the Hague Convention

Author of the article: Mgr. Mgr. Vendula Růžková, LL.M., MBA, ARROWS

International child abduction is a serious problem that can arise in situations where one parent illegally takes a child to another country, thereby violating the rights of the other parent and threatening the stability of family relationships. This problem is now addressed through the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), which was adopted in 1980 and has since become a key instrument in the protection of children in international abductions.

What is international child abduction?

International child abduction occurs when one parent, without the other parent's consent (or without the court's permission), takes the child from his or her normal place of residence to another country or detains the child there against the other parent's wishes. This act is considered a violation of the child's rights and the rights of the other parent. International abduction can involve both parental rights (e.g. the right to care for the child) and the right to personal contact between parent and child.

The Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention was adopted to protect children from international abduction and to return them as quickly as possible to the countries where they were normally accustomed to live. The Convention provides mechanisms for prompt legal proceedings to return a child to his or her home country as soon as possible if he or she has been taken illegally. The Convention aims not only to return the child, but also to ensure that the rights of parents and children are protected in accordance with international standards.

The main principles of the Hague Convention

The Convention sets out several basic principles that facilitate the resolution of international abduction cases:

• Prompt response and return of the child: The Convention aims for the child to be returned as soon as possible to the country where he or she usually lived. This process should take as little time as possible, ideally within six weeks.
• Competence of States: The Hague Convention allows each State that has ratified it to designate a central authority to deal with cases of international child abduction. This authority is responsible for receiving requests for the return of the child and for ensuring an effective legal procedure.
• Priority to the child's right of return: The Convention is based on the principle that it is in the best interests of the child to return to the country where he or she has lived and where he or she has his or her habitual environment. The grounds for refusing to return a child are limited and must be sufficiently serious (e.g. threat of danger to the child if returned).
• Rights of the parents and the child: The Convention aims to protect the rights of the child and the rights of the other parent. In cases where a child is unlawfully removed, the other parent is entitled to demand the child's return. If the child is being held in another country, that parent can apply to the competent authority in that country.

How are proceedings under the Hague Convention carried out?

1. Application for the return of the child: if there is an international abduction of a child, the parent whose child has been unlawfully removed may apply for the return of the child in the country where the child usually lived, or directly in the country to which the child was unlawfully removed.
2. Locating the child: The Central Authority in the State concerned shall take steps to locate the child. This may include cooperation with the police, social services or other institutions.
3. Legal and administrative support: The central authority provides assistance to the parents in processing the application, collecting documents and preparing for court proceedings.
4. Court proceedings: If there is no voluntary return, the court decides on the situation. The court assesses whether the conditions of the Convention are met and issues a decision.
5. Return of the child: If the court decides on return, the Central Authority will ensure its implementation, including logistics and communication between the parties involved.

On the Czech side, the Central Authority for the implementation of the obligations imposed by the Convention is the Office for the International Legal Protection of Children (ÚMPOD).

The Central Authority and the Court have different but complementary roles under the Hague Convention:

The role of the Central Authority:

1. Coordination and support: the Central Authority provides administrative support for the application for return of the child.
2. Determination of the child's whereabouts: Actively involved in locating the child through cooperation with other institutions (police, social services).
3. International communication: Serves as a link between the central authorities of different countries, parents and institutions.
4. Legal support: assists parents with the preparation of documents and legal submissions, ensuring that all formal requirements are met.
5. Return logistics: After the court decision has been issued, it is involved in ensuring the practical return of the child.

Role of the court:

1. Return decision: the court assesses whether the conditions of the Hague Convention have been met and decides whether the child will be returned.
2. Evaluation of evidence: Examines documents, witness statements and other evidence to verify whether the child has been wrongfully removed or detained.
3. Consideration of exceptions: Considers whether there are legal grounds for refusing return, such as the risk of endangering the child or the child's integration into a new environment.
4. Enforcement of the decision: Once the decision has been issued, the court supervises its implementation in cooperation with the central authority.

While the central authority facilitates the whole process administratively and organisationally, the court is key to issuing a legally binding decision. The two bodies work together to ensure that the procedure is efficient and in the best interests of the child.

When is it not possible to return the child?

The Convention provides for several exceptions when a child cannot be returned to his or her country of origin, even if he or she has been abducted or unlawfully detained. These include:

• If the child's return would endanger his or her safety or health.
• If the child refuses to return and is able to express his or her views.
• If the child has been settled in the new country for more than one year and the other parent knew about his/her whereabouts and did not act.

Conclusion

The Hague Convention on the Civil Aspects of International Child Abduction is a key instrument for protecting the rights of child victims of international abduction. The Convention creates an international framework for the swift and effective resolution of such cases. Although the processes can be complex and challenging, the Convention provides parents and children with the opportunity for a swift and fair remedy. If you find yourself in a situation where your child has been illegally removed to another country, do not hesitate to contact us. We will be happy to provide you with professional support and help you find the best solution to return your child.