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Key Concepts of The Hague Convention on International Child Abduction

 

The Hague Convention on International Child Abduction (“the Hague Convention”), effective October 25, 1980,[1] is an international agreement that establishes safeguards to inter-country adoptions, while working to ensure that an inter-country adoption is in the best interests of a child. As an appellate attorney, I have both represented a number of clients in Hague Convention appeals and been part of trial teams litigating Hague issues.  In this post, I will examine the basic structure and outline a number of key components of the Hague Convention.

There are two separate concepts by which a particular court would have the power to hear a case involving a child: the Uniform Child Custody Jurisdiction and Enforcement Act (“U.C.C.J.E.A.”), and the Hague Convention.

Unlike the U.C.C.J.E.A., which determines a court’s jurisdiction to hear a case (effectively, a state’s jurisdiction), the Hague Convention does not address jurisdiction.  It seeks only the immediate return of a child to its country of habitual residence if the child was wrongfully retained or removed from that habitual residence.  The purpose, then, of the Hague Convention is to decide only whether a child was wrongfully removed or retained from its habitual residence, and then, if so, to assure the prompt return of the child to its habitual residence.[2]

Most habitual residence cases will fall into one of two patterns[3]:

  1. Parent 1 and Parent 2 decide to move with their children from Country A to Country B. After some time in Country B, Parent 1 decides that he does not want to live in Country B and moves with the children back to Country A. Parent 2 (the left behind parent) petitions for the return of the children, arguing that the children had acquired habitual residence in Country B; or
  2. Parent 1 and Parent 2 live in Country A. They decide together that Parent 2 and the children will visit Country B for a predetermined amount of time. After arriving in Country B, Parent 2 decides to extend her time there indefinitely and to keep the children with her. Parent 1 petitions for return of the children, arguing that they had not acquired an habitual residence in Country B.

Wrongful removal is defined as a breach of the custodial rights, as defined by the habitual residence, of the parent or guardian immediately before the removal or retention, where the custodial rights were being exercised at the time of the removal or retention.[4]  Though defining wrongful removal or retention turns on determining the child’s habitual residence, the concept of “habitual residence” is not defined by the Convention.  This is because Hague cases are generally fact-driven, and the drafters of the Convention wanted to keep the concept free from a technical rule, which could produce rigid rules and inconsistencies between different legal systems.  Still, the concept of habitual residence is understood to be the “locus of the children’s family and social development.”[5] Determining the child’s habitual residence is a key element to deciding a Hague case, and it is defined by the facts of the case.

To determine whether there has been a wrongful removal or retention, the court must answer four questions:

  1. When did the removal or retention at issue take place?
  2. Immediately prior to the removal or retention, in which state was the child an habitual resident?
  3. Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?
  4. Was the petitioner exercising those rights at the time of the removal or retention?[6]

As a general rule, every child can have only one habitual residence at any point in time.[7]  But measure of time alone will not answer whether a place is a habitual residence.  Instead, the court must examine the subjective intention of the parents: is there a settled intention to live in a particular place? If the claim is that the new place has become the habitual residence of the children, then there must have been a settled intention, by both parents, to abandon the prior residence and an actual change in geography.

Hague cases are urgent and can be complex, especially when there is doubt concerning the habitual residence of a child or the details surrounding the removal or retention of a child.  In my next post, I’ll examine the range of possible defenses in a Hague case.

 

 


[1] Enacted as International Child Abduction Remedies Act (“I.C.A.R.A.”), at 22 U.S.C. §§9001-9011.

[2] See the Hague Convention, art. 12.

[3] Valenzuela v. Michel, 736 F.3d 1173 (9th Circ., 2013)

[4] The Hague Convention, art. 3.

[5]  Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Circ., 2001).

[6] Id., at 1070.

[7] Id., at 1075, fn. 17; Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993).