About the Hague Convention
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention)” is a multilateral international treaty. It only applies if both relevant countries (i.e., the country the child is taken from, and the country the child is taken to) are treaty partners. The Hague Conference on Private Internal Law (“HCCH”) keeps a status table where you can find the list of countries that have joined the 1980 Hague Convention. Note that if a country has acceded to the Hague Convention (i.e., agreed to be bound by its terms after the treaty was already negotiated and signed), that accession must be accepted by the other relevant country before the two countries are considered treaty partners with one another. Countries that have acceded to the Convention are indicated in the status table by an “A.” The U.S. State Department website has a list of all current U.S. Hague Convention treaty partners.
The Hague Convention’s stated goals are (i) “to secure the prompt return of children wrongfully removed to or retained in” another country and (ii) ”to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” The Hague Convention does not address the issue of who should have custody or access to the child. Instead, it only addresses the question of which country should decide custody and/or access.
To argue successfully for the return of a child, the parent making the request for return has to prove (i) that the child was removed or retained from their country of habitual residence; (ii) in breach of the the left behind parent’s rights of custody; and (iii) that those custody rights were actually exercised at the time of removal or retention or would have been exercised but for the removal or retention.
The Hague Convention has several defenses that, if proven in a court of law, could prevent the return of a child:
- The child has been in the United States for over one year and is now well-settled in his/her/their new environment. (See Convention Art. 12.)
. - The person seeking the return of the child had consented to or subsequently acquiesced in the removal or retention of the child. (See Convention Art. 13.)
. - Returning the child would cause “a grave risk” of exposure “to physical or psychological harm or otherwise place the child in an intolerable situation.” (See Convention Art. 13.) Such situations may include, but are not limited to, child abuse, serious neglect, domestic violence, war, and/or inadequate treatment facilities for a child with a serious medical condition.
. - The child objects to return and is of an age and degree of maturity at which it is appropriate to consider the child’s view. (See Convention Art. 13).
. - Return would not be permitted by the principles of the United States relating to the protection of human rights and fundamental freedoms. (See Convention Art. 20.)
The International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9101 et seq., is the U.S. federal statute that implements the Hague Convention in the U.S. ICARA establishes procedures for filing a Hague Convention petition in the U.S. Under ICARA, the “left-behind parent” can file a Hague Convention petition in either state or federal court asking for the court to order the return of the child to the “left-behind” country. The parent filing the petition is known as the “Petitioner.” The petition must be filed in the jurisdiction where the child is located at the time of filing and must be served on the party (or parties) who have custody of the child. That person(s) is known as the “Respondent.”