International Child Abduction

By Johanthan W. Lounsburry – United States – 

Each year some parents are faced with a devastating reality: their partner has taken their child to another country and is refusing to return.  They are left-behind and at a loss of what do.  Not only is this an emotionally charged situation, but it is also highly technical and requires a deft legal response.  Fortunately, in certain situations, there is a legal remedy to help the left-behind parent recover their child. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention) is a multilateral treaty designed to protect children and promote prompt return of abducted children to their habitual residence.  In the United States, the 1980 Hague Convention is enacted by the International Child Abduction Remedies Act (ICARA) which allows a left-behind parent to seek return of the abducted child in State or Federal court. 

1980 Hague Convention

There are approximately 101 contracting countries to the 1980 Hague Convention, so an important first step is to determine what countries are involved.  If you are a left-behind parent, filing a return application under the 1980 Hague Convention is likely the fastest remedy available to you.  (If the country you are seeking a return from is not a contracting party, there are likely still remedies available to you through other legislative schemes or legal vehicles.)

Habitual residence

In seeking a return, the left-behind parent must demonstrate the child was habitually resident in the country they were removed from, that the removal was in breach of the left-behind’s custody rights, that the left-behind parent was exercising their custody rights at the time of removal, and the abducted child is under sixteen years of age.  Last, the petition seeking return should be filed within one year of the abduction. 

Defences

Although the 1980 Hague Convention seeks an expeditious return of the child, a court may decline to return a child if one of the following defenses to the abduction can be demonstrated: the child is settled in the new country, the left-behind parent acquiesced to the child being in the new country, there is a grave-risk of harm to returning the minor child, the child objects to the return, or returning the child would violate public policy. 

Whether you are the left-behind parent or the taking parent, each situation is as emotionally charged as the other; and each is highly technical and requires a deft legal response.

All blogs from The Author:

• The use of Foreign Experts in 1980 Hague Convention Cases
• Cross-Border Child Relocation Dispute: Strategic Legal Intervention Between Egypt and Vietnam
• Child Placement and Co-Parenting in Italy
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• Dealing with international child abduction
• No return order due to ratified parental agreement
• Abducted in Italy
• Father’s Rights in International Law
• Care arrangement from Dubai
• Return order to Israel
• Permission not required
• Supporting families and colleagues through the CALA
• International Law in Domestic Courts: A Note on Child Litigation in the UK
• The wishes of a child in a Hague Convention procedure in Hungary
• The voice of the child in Hungarian abduction procedure
• Towards a Comprehensive Approach to International Child Abduction Situations
• Act of Fraudulent Commission of Reality
• Article 13b defence
• My child has been abducted to Brazil
• Return order not required
• Brazil’s new era in child abduction cases
• ASIME congress november 2023
• International Child Abduction and The Hague Convention
• International child abduction case leads to indirect recognition of LBGTQ+ families in Greece (?)
• What is the law with parental child abduction in the UK?