The 1980 Hague Convention Treaty regarding the Civil Aspects of International Parental Abduction (“Hague Convention”) is currently being threatened in the Unites States under a proposed new amendment to the United States’ version of the Hague Convention, which proposal would stop numerous returns of abducted children to their countries of habitual residence.
Any proposed new legislation which attempts to widen one of the exceptions to the rule that abducted children must be returned home is extremely concerning. Expanding the exceptions to having to return abducted children to their home countries may so weaken the enforceability of the treaty, as to nearly stop the enforcement of the Hague Convention treaty in the United States.
By way of background, pursuant to the Hague Convention ( 42 U.S.C. 11601, et seq.), a left-behind parent whose child has been abducted by another parent and taken or retained in a contracting country may, through a Hague Convention proceeding, obtain an order returning the minor child to his/her country of habitual residence.
The text of the Hague Convention sets forth three clear requirements for the return of the minor child. As a general summary, these are:
- That the child was a habitual resident of the state from which he/she was taken;
- That the child was wrongfully removed from the state by the abducting parent, meaning that the non-abducting parent had parental rights which he was actually exercising at the time of the abduction; and
- That the case does not fall into any exceptions. These limited exceptions are:
a. That the non-abducting parent was not actually exercising his custodial rights, or consented to the removal and/or retention of the child;
b. “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”; or
c. That the Hague Convention proceedings were commenced more than one year from the date of abduction/retention.
Importantly, as set forth in Article 16 of The Hague Convention, a Hague Convention proceeding is per se, not a custody proceeding, and any request by either parent for a custody determination, such as to determine which parent should be the primary or sole custodial parent, is irrelevant to a Hague Convention matter:
“. . . [T]he judicial or administrative authorities of the contracting state to which the child had been removed or in which it has been retained shall not decide on the merits of rights of custody . . . [Emphasis added.]”
This directive is not only expressly stated in the text of The Hague Convention but has been repeatedly upheld in the United States and other courts hearing Hague Convention cases. In Nunez-Escudero v. Tice-Menley, (1995) 58 F.3d 374, 8th Cir., for example, the court stated unequivocally:
“We instruct the court not to consider evidence relevant to custody or the best interests of the child.” Id. At 378.
Unfortunately, instead of following, the relatively simple dictate of the Hague Convention to return children to their countries of habitual residence rather than make a determination as to which parent a child is better of living with, Hague Convention Courts have often taken into consideration claims of domestic violence by abductors as an exception to the return rule.
However, this debate is not about leaving victims of domestic violence without protection, and attempting to justify this Amendment by focusing on victims of domestic violence is a “red herring”. Indeed, a victim of domestic violence who abducts a child and loses a Hague Convention matter need not return to the previously violent relationship or to the previously shared home in the country of habitual residence. He/she has every right to protection from the other parent whom she/he claims is abusive, and to ask a court for custody based on the other parents’ behaviour-and all of this should take place in the home court, rather than stop the return of the child his/her country of habitual residence.
The focus of the “grave risk of harm” exception to the Article 13 exception to returning the children is on the children themselves rather than on their parents. A victim of domestic violence will have the right to obtain all the benefits and protections of the legal system in the country of habitual residence including police assistance, obtaining restraining orders, and the like. If he or she would not have such protections, the focus of the Hague Convention’s hearing would be on determining whether the country of habitual residence has such working assistance systems in place.
Indeed, the focus, as clearly set forth in the Hague Convention treaty itself is not exposing the child to physical or psychological harm or otherwise placing the child in an intolerable situation.
Any domestic violence claims should be litigated in the country of habitual residence, the only country which is allowed to make a custody determination. Any amendment to the Hague Convention in the United States which would add domestic violence as an additional Article 13 exception, to be litigated in the abducted-to location would blur the line between making a custody determination (which only the country of habitual residence may do per Article 16) as opposed to determining if a child was wrongfully abducted from his/her country of habitual residence.
The purpose of the Hague Convention per its Article 1 is: “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Per the literal words of Article 1 of the treaty, the return is per se and on its face not being made “to the other parent”, but to the country of habitual residence.