Child abduction

Child abduction means that one parent has moved the child to another country or is withholding it in another country without the consent of the other parent with custody.

The Hague Convention on Child Abduction gives you the opportunity to ask the court for a return order. But unfortunately, not all countries are members of this treaty.

The Hague Convention on international child abduction

The Hague Child Abduction Convention has been recognized by many countries and provides a means of quickly obtaining clarity and, in principle, restoring the old situation. Only in exceptional cases the request for return is refused.

The member states each have their own implementation law. There are differences between countries in terms of, for example, the length of the procedure and the age and manner in which children are heard.

Decision making model

Will you get a return order?

If you go through these questions, you will have a better idea of the chances of success of proceedings over an order to return the children.

Find out what defenses you can raise to prevent a return order.

In order to accurately investigate what your chances are, it is advisable to hire an attorney. You can find a lawyer in the country where the children now live, who can start the procedure for you.

The 6 defences in a child abduction case

There are six grounds for the court to refuse the requested return order. They are not all equally likely to be raised.
  1. The requesting parent was not exercising custody rights
  2. The requesting parent consented to or acquiesced the move
  3. The child is of sufficient age and maturity and objects to being returned
  4. The child is well settled and procedure started only after one year
  5. Grave risk of physical of psychological harm if the child is returned
  6. Fundamental principles relating to the protection of human rights and fundamental freedoms do not permit return of the child

United Nations Convention on the Rights of the Child

Decision making model

Article 3(1) of the Convention on the Rights of the Child reads:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The question arises to what extent the requirement of Article 3 of the Convention on the Rights of the Child is met in child abduction cases.

This was also the case in the procedure about a young boy in Chile, who was diagnosed with autism. The Supreme Court of Chile ordered the return of the child to Spain, without protective measures. Therefore the mother started a procedure at the UN Committee for the Rights of the Child.

The role of the guardian ad litem

What is the role of the guardian ad litem in a Hague Convention case?

  • Does the court appoint a guardian ad litem?
  • What is the task or what are the questions he or she has to answer?
  • Does (s)he have a talk with the child?

Different lawyers from different countries explain the role of the guardian ad litem.

Decision making model

Habitual residence

Decision making model

The subject of habitual residence is mentioned in several articles of the Hague Convention on Child Abduction. But the Convention does not explain what state should be considered the ‘habitual residence’ of a child. We have to look at case law to find out. We will take a closer look at cases from the European Court of Justice and the Supreme Court of the United States.

One week service

Decision making model

In child abduction, time is precious. For example, because a child gets used to the new environment over time and may not want to return to their country of origin after a while. Or because the child has to miss the social contacts in the country of origin and becomes isolated.

It is therefore important that you act quickly and that your lawyer ensures that you quickly know what your chances are of returning the child to the country of origin. The lawyers mentioned on this website have all dedicated themselves to providing the ‘one week service’. 

Within one week you will know:

  • which documents are relevant
  • what information is relevant
  • whether there is a chance that a return order for your child can be given by the court
  • how to gather proof to support your request or your defences
  • whether or not you need to contact a lawyer in the country where your child is currently residing

After that you can discuss:

  • whether or not to file a request through the Central Authority or directly to the court
  • how to quickly restore contact with the children
  • how to weigh everyone’s interests in terms of the removal and the desired order of return
  • whether there are opportunities to propose appropriate solutions with some creativity and flexibility
  • whether you are open for mediation.

The lawyer of your choice can tell you if you need a lawyer in the country of origin or in the country where your child is currently residing. In the latter case, you can communicate directly with the lawyer in the other country or choose to be accompanied in this process by a lawyer from your own country.

Mediation

The Hague Convention on Child Abduction places an obligation on the Central Authorities of the Member States to take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issue (article 7 of the Convention).

Often this means that the Central Authority offers the parties the opportunity to participate in mediation. If the case does subsequently go through the court, the court may also alert the parties to the possibility of mediation and the benefits that mediation can provide over a court decision.

Posts about child abduction

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Frequently asked questions

What is child abduction?

Child abduction means that one parent has moved the child to another country or is withholding it in another country without the consent of the other parent with custody.

How can I ask for a return order?

You can file a request for a return order with the Central Authority or the court in the state where your child has been abducted to.

What should I do if I think my friend or colleague has abducted the child?

You can try to be understanding towards the parent, who is probably in an emotional rollercoaster. You can try to talk and find out her or his thoughts and reasons. The decision to relocate/abduct the child can be caused by a misunderstanding of the situation or rigide thoughts about what is the best interest of the child. You can try to reach out to the child, who could be in an isolated and confusing situation. You can try to assist with (video)contact with the other parent, as this can be too difficult for the parent to accomodate right now.

What damage can child abduction cause to a child?

Child abduction can cause harm to the child as a result of the (prolonged) uncertainty of where he or she will live, the lack of (normal) contact with the other parent, the conscious experience of a period when the parents cannot agree and may exclude and/or disqualify each other, and possibly as a result of a period of isolated living if the abducting parent wants to keep the child hidden or fears abduction by the other parent. In addition, the stress surrounding the proceedings may cause the parent(s) to be less emotionally available to the child and lose sight of the child’s best interests.

What is a child's habitual residence?

The Convention does not give a definition of ‘habitual residence’. And the interpretation can vary per state/ court. You can read more about this subject on the page ‘Habitual Residence‘ of this website.

Sources of information

There are several websites that give you information and advice about parental child abduction:

  • International Center for Missing & Exploited Children
  • U.S Department of State’s Office of Children’s Issues
  • Missing Kids
  • Missing Children Europe

HCCH country profiles

On the HCCH website you can find many country reports that give extensive information on how the country in question implements the Hague Convention on Child Abduction. We briefly indicate what information you can find in those reports.

 

Find a lawyer or mediator

For a number of countries, we provide a list of lawyers and mediators who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.

 

Information for children

This website is made especially for children, to inform them about child abduction: www.findinghome.world

The website answers questions, such as:

  • I am worried about a friend or family member who I think may have been taken overseas.
  • Will my parents get in trouble for taking me overseas?
  • Can I choose where I live?
  • Why do I need to be returned to where I was before?

Image from: www.findinghome.world