International parental child abduction occurs when one parent unlawfully takes (or retains) a
minor child in a country other than the one the child has his/her habitual residence. If that country is a party to the
Hague Convention on the Civil Aspects of International Child Abduction (applicable to children under 16), then the child will usually be returned to the country of origin. If there is a conflict of law between two countries, the guardian must follow the laws of the country where the child physically present. It is very common that a parent that has legal custody of the child in the country where the child physically present, is wanted for parental abduction in another country. In such cases the child cannot be removed from the country where the child physically present, before child custody ends at age 18, because otherwise the child will not be returned to the taking parent.
Origin of the term What is today called "parental kidnapping," "international child abduction", "parental child abduction" and "parental child trafficking" has existed as long as different legal jurisdictions and international borders have—though often under different names. None of these names achieved the modern day broad acceptance of terms like international child abduction. Lacking a common set of terminology or specifically designed laws to address the, at the time, poorly defined problem, researchers on the history of cross-border child abduction must search for terms like "custodial interference," "contempt of child custody orders," "legal kidnapping" or, in cases where children were viewed more as property than as individual subjects of rights, name variations on theft, child-maintenance debt and smuggling, among others. Lawmakers struggled to typify and discuss
international child abduction and discussions at the
Hague Conference on Private International Law noted that, what some were referring to with variations on "legal kidnapping," was an oxymoron since that which is legal cannot be kidnapping and that which is kidnapping cannot be legal. The response to these concerns was the coining of the term "international child abduction." The terms first prominent use was in the title of the 1980
Hague Convention on the Civil Aspects of International Child Abduction. The term is not, however, used anywhere in the actual text of the convention itself in preference of the more technical terms "wrongful removal" or "wrongful retention" which were better suited for describing the mechanics of the Convention's system. The use of the term is now widespread in international law.
Internationalization of family law In all family law disputes a determination must be made as to which legal systems and laws should be applied to the dispute. This question becomes much more complicated when aspects, or parties, of the case occur in, or hail from, multiple legal jurisdictions. "
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation The 1996
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures is the third of the modern
Hague Conventions on international family law, following in the footsteps of the
Abduction Convention and the
Adoption Convention. It is much broader in scope than the first two conventions and covers a wide range of civil measures related to the protection of children including: orders concerning parental responsibility and contact, public measures of protection or care, matters of legal representation and the protection of children's property. The Convention has uniform rules determining which country's authorities are competent to take the necessary measures of protection. The Convention also determines which country's laws are to be applied and provides for the recognition and enforcement of measures taken in one Contracting State in all the other Contracting States. The co-operation provisions of the Convention provide the basic framework for the exchange of information and the necessary degree of collaboration between administrative authorities in the Contracting States. Reflecting an ever-increasing emphasis on the need for international cooperation as an essential element in the success of these measures the Convention has a full chapter on cooperation consisting of eleven articles. In the context of mediation families can deal with the question of return and also find solutions to other issues relating to their children. The Hague Conference on Private International Law provides a Guide to Good Practice Child Abduction Convention: Part V - Mediation.
Legal justifications for abduction International law has generally recognized that there may be extenuating circumstances where a child abduction may have been necessary or justifiable due to extenuating circumstances. The
1902 Convention on the Guardianship of minors limited such considerations to strictly emergency situations. Starting with the
1924 Declaration on the Rights of the Child and the
1959 United Nations Declaration on the Rights of the Child there was a growing recognition at the international level of the shift in nation's domestic laws away from parental authority and towards an emphasis on protecting the child, even from their own parents.
Abduction Convention: "Grave risks of harm" and "intolerable situations" The principal purpose of the Abduction Convention is to cause the prompt return of a child to his or her "habitual residence." In certain exceptional cases under Article 13b, the court's mandatory return obligation is changed to a discretionary obligation, specifically, "the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The duty to return a child is not abrogated by a finding under Art. 13(b) but merely changes from mandatory to discretionary. Since the general intent of the Convention is to cause the return of a child to his or her "habitual residence," unless there are some powerful and compelling reasons otherwise the court is normally and routinely expected to exercise its discretion and return the child to his or her "habitual residence". In the primary source of interpretation for the Convention, the Explanatory Report, Professor E. Perez-Vera noted the following: it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child's habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration. In spite of the spirit and intent of the Convention as conveyed by the Convention itself and further reinforced by the Perez-Vera report, Article 13b is frequently used by abductors as a vehicle to litigate the child's
best interests or
custody. Although Article 13(b) inquiries are not intended to deal with issues or factual questions appropriate for custody proceedings, many countries use article 13b to request psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships. These misinterpretations of the Abduction Convention's exceptions have rendered the Convention largely ineffective in accomplishing its objectives. The "best interests" of a child, which is explicitly never mentioned in the Convention, is an essentially subjective standard that judges often use to facilitate foreign nations' manipulation of the treaty and create a pretext for discretionary decisions. This discretion often takes the form of gender, cultural and national biases. The result is substantive non-compliance with the Abduction Convention.
Domestic violence At the time the
Hague Abduction Convention was drafted domestic violence was never explicitly considered as an
affirmative defense for child abduction, although it may be brought as a defense under Article 13, if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Article 13 supposed that the child's primary caretaker would abduct the child to escape the domestic violence of a non-custodial parent. At the time of the Conventions drafting,
joint custody laws were rare. One parent was usually both the custodial parent and primary caretaker while the other, non-custodial parent had rights of access. The move towards joint custody laws conferred both the parent who acted as the primary caretaker and their ex-partner with custodial rights and, by extension, a right to request the return of children wrongfully removed from their place of habitual residence. In addition to not accounting for a shift in child custody law towards
shared parenting and joint custody, according to Weiner, the framers of the Convention also did little to account for the motivation for abducting a child, generally assuming that all abductions were harmful to children; however, the child's primary caretaker may be fleeing with a child to protect himself or herself from a dangerous domestic situation. == Global Missing Children’s Network ==