1. The Two Truths to Global Parenting
There are two truths to parenting today that sometimes crash into each other:
parents are internationally more mobile that ever;
spousal relationships fail.
As a result, even those who understandably have never paid much attention to international treaties seem increasingly to have heard of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which is used around the world to compel return of children to jurisdictions from where they were unlawfully taken. You need to understand the power and the limits of that Convention if you’re a parent who has children who might be living or even travelling outside their home country.
2. Why Domestic Family Law is Increasingly Internationalized
I used to do diplomatic work for Canada and studied public international law. It never occurred to me at the time how useful that experience might be in practicing as an international family law lawyer. Family law may be one of the most “domestic” of the legal disciplines, in that each country (and sub-jurisdictions within countries) frequently conceives of family law in dramatically different ways. Which isn’t the case with other legal disciplines like contract law.
But just like the world began centuries ago out of necessity to invent common legal rules for ships moving among states, it’s increasingly started to agree upon some common family law principles to resolve issues of which country has jurisdiction over increasingly mobile family disputes including children.
3. The Five Situations that Most Engage the Hague Convention
You might internationally find yourself in one of five situations if your relationship with your child’s other parent fails:
you're stuck with your children in a “foreign” country that the other parent is a national of, and you want to take the children back to your home country away from your spouse's country;
you’re living in your home country, but your spouse wants to take the children out of that country back to his/her home country;
you’re both in a “foreign” country that you are residents of, and each of you wants to take the children to another country that you can’t agree upon;
the other other parent has fled with the children from the country they (and you) were living in to another country;
you’ve fled with the children (perhaps under the pretext of a “holiday”) from the country all of you were living in to another country.
“Can I/he/she do that?” is commonly the burning question. You need to have some understanding of both the Hague Convention as well as the legal systems of the country the children are currently in and any other country a parent hopes them to move to.
4. Hague Convention Basic Principle is Return After Wrongful Removal
A general rule of jurisdiction for international child custody fights (with significant national variations) is the court with jurisdiction is the one where the children are ordinarily resident. That does NOT mean where they are citizens, or living for a short time, or currently found. How residency is defined can be tricky, but usually some degree of being legally settled combined with a minimum time presence like 3, 6 or 12 months.
Sometimes you’ll hear the term “domicile” used which is similar to and occasionally interchangeable with “residence,” but of a more permanent and legalistic nature.
Like other international treaties, there are lots of words in the Hague Convention. But Articles 3 and 12 are probably the two most important for parents to know about:
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
So you need a combination of (a) wrongful removal breaching custody rights and (b) less than a year having passed since that removal in order to trigger automatic return of the child. But a court hearing would usually be required to prove the wrongful removal aspect triggering “shall order the return,” so return won’t be instantaneous.
In practice it can be hard to invoke the settled for more than one year proviso unless it can be proven that the other parent knew about the child’s location and did nothing to pursue the child’s return. Where one parent has hidden the child, courts generally would not look at the one year limitation period being applicable.
So the key points for Article 3 and 12 are:
act quickly to demand a child’s return as soon as you learn your child has been taken to another jurisdiction with no plans for return;
that demand may require a court hearing for you to prove the wrongful removal;
if you are a parent facing a claim of wrongful removal, you could likely best defend it on the basis by arguing the removal wasn’t wrongful.
Both parents are going to need a lawyer where the children are located. A parent seeking return to another country might find a lawyer in that country helpful in collaborating with a foreign lawyer in the jurisdiction of the children, but if things need to be fought out in court the lawyer located where the children are will be key.
5. The Hague Convention Grave Harm Exception to Return
I’m often asked by desperate parents about whether they can invoke exceptions to the Hague Convention because of domestic violence. The short answer is yes. But you’ve got to be prepared to prove it.
Article 13 sets out a grave risk of harm principle as a key exception to the Convention,:
Notwithstanding the provisions of the preceding Article, 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 -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
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.
There will be extreme cases, supported by compelling evidence, where even if children have only briefly been in a new jurisdiction, or even if they were taken from another jurisdiction without a parent’s consent, a court might accept to hear a custody case as a normal matter of domestic family law and not order the children’s immediate return to the foreign jurisdiction because of “grave risk.”
Courts repeatedly hear allegations of spousal and child abuse brought by the fleeing spouse against the spouse seeking return of children. Because of the commonness of the allegations, courts cannot accept them at face value even if true. Because the test is “grave risk” and not just “risk,” clear, credible and compelling evidence is needed. And unfortunately that evidence might be stuck in the country fled from.
So medical reports that go beyond just repeating allegations and that link specific injuries to having been caused by the other spouse; court documents including records of criminal convictions for abuse; government children’s aid reports documenting abuse investigations and outcomes; sworn witness statements from third parties testifying to first hand witnessing of the abuse, or hearing abuse, or seeing injuries, or being told about the abuse.
Parents might think such evidentiary requirements ridiculous. That they’re impossible to meet. Even without supporting records, if you present a compelling very detailed narrative (places, dates, times, situations, people), that isn’t contradicted by the other parent, then you might stand a chance. But you’ll usually need some corroboration in the face of disputed facts.
The courts have at least recognized that domestic violence committed against a spouse, particularly if committed in front of the children, puts children at risk of both psychological and physical harm. So you don’t need to establish abuse aimed directly at the children, so long as you link its effects to them.
If you’re the one facing allegations of abuse when seeking return of children, it’s important not only to contest the allegations but also to present your own evidence about what really went on in the relationship, again supported by documents where possible.
The judicial or administrative authority may also refuse to order return of a child under the Convention if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. There’s also an “intolerable situation” exception to return, but how “intolerable situation” is defined is unclear; it’s likely a fall back provision in case a court thinks return would lead to a shocking result and denial of such return can’t be based on other grounds.
Thus as a parent opposing return could attempt to prove:
custody had already been given up;
removal had been consented to;
there is a “grave risk” of physical or psychological harm to the child;
the child would be in “ an intolerable situation” if returned.
The parent favouring return must be prepared to present evidence countering each of those points in a proactive way, and not merely be reactive to evolving evidence of the other parent.
6. The Fundamental Freedom Exception to Return
There’s another significant exception to return at Article 20 of the Convention that’s less commonly invoked:
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
This rather vague human rights reference could be difficult to trigger, as many countries with what could be termed more “traditional” views of family relations are not parties to the Convention, and those who are parties (plus almost all those who aren’t) have generally signed onto all the major United Nations international human rights conventions and declarations, meaning setting up contests between my human rights are better than your human rights could be difficult to establish. But it could be a useful exception to argue if you’re the one resisting return when used in combination with the Article 13 exception .
7. The Dubious Differences of Being in Hague Versus Non-Hague Countries
The Hague Convention on the Civil Aspects of International Child Abduction remains one of the less universally ratified important international treaties. While in almost 40 years 99 countries have ratified the Convention, that means almost half of the world’s nations haven’t done so. It’s thus very important to know if you find yourself in or out of a Hague Convention jurisdiction.
If you’re not in one, the Convention won’t be useable against you to compel return. But you also won’t be able to use the Convention yourself to obtain the return of a child. And in theory a two way street is required for the Convention to operate. Meaning both the country to where the children have been taken, and the country demanding their return, must have ratified it in order for it to work.
In reviewing any list of who’s in and who’s out, be aware that “ratified” means more than simply having signed. To ratify is to make in force in your jurisdiction, possibly by passing implementing domestic legislation.
Generally there’s a high level of ratification within the Americas, Europe, and East Asia, while Africa, South Asia, and West Asia have limited ratifications. It’s not possible to generalize about ratification propensity based on political system or majority religion, you simply need to check the online list to see if a country is in or out.
Oddly enough, ratification may not make nearly as much difference to the end custody battle result as will the fundamental family legal system principles in operation in whatever country the children are located in. So in Canada, a judge might invoke the Hague Convention in coming to a particular decision, but the Convention might slam into the “best interests of the child” test that usually reigns supreme in domestic law.
Just because the Hague Convention doesn’t apply doesn’t mean there aren’t remedies for return in a local legal system. Some countries might even just use criminal process. They could put out an international arrest warrant for the abductor, or at least issue such a warrant within their own country so that the abductor could never return. They could also request criminal extradition of the abductor from the state to which s/he has fled. Extradition usually depends on mutual treaties, and there are many countries (especially the civil law jurisdictions) which won’t extradite their own nationals. There are no guarantees here as to whether an arrest would ever be made. But it’s a risk. And if there is an arrest, the consequences would often be far more severe than mere family court proceedings ordering the return of a child.
Generally, if you’re a parent demanding return, you’ll probably be better off demanding that from a Hague Convention ratified state. And if you’re a parent resisting return, you’ll probably be better off doing that from a non-ratified state. But because domestic law will still dominate where the children are found, you need especially to determine if you’re in a pro-mother state, pro-father state, or neutral state when it comes to parental rights. Thus a mother taking refuge in a non-Convention pro-father state might be at much greater risk of losing than if she was in a Convention state whose legal system favoured neither fathers nor mothers.
8. You Can Do Almost Anything With Consent
The most obvious solution to any international child custody battle is you can do almost anything with consent of the other parent. But although the answer is so obvious, I find in my practice it’s often ignored. I do get why, largely because if a relationship has so broken down that you’re splitting up, it might seem neither party is in a mood to agree to much of anything. Especially concerning children.
From a legal perspective, family life is really a form of social contract. Yes, the state makes a few of the rules. But most of them are created by the partners through verbal agreements. And there’s nothing stopping you from committing family agreements to writing which many courts will later enforce as binding contracts.
9. Unilateral Self-Help Most Compels Return
The polar opposite of consent is the take the children in the middle of the night and attempt to smuggle them out of the country kind of action. Yes, it’s proactive. Yes, it might be seeking to avoids risks of continued domestic violence. Yes, it might even have a chance of working in the short-term. But it’s the longterm that counts.
Unilateral self-help might so finally poison a difficult relationship between parents that any even vague chance of negotiating consent is forever broken. You could wind up in jail in your host country if you don’t make it across the border with the children. And you could face a civil court order back in your own country compelling the children’s return. You might even wind up stuck in legal limbo in a third country you were transiting through en route to your home.
What can be said with certainly is unilateral self-help can put you at a horrible legal disadvantage in the long term, from which you might never recover. Judges all over the world like respect for the law. If they didn’t, they wouldn’t be judges, they’d find something else to do. So when the law appears to have been broken in whatever country, the judges (wherever they may be) are immediately going to look negatively on the person accused of breaking it. So I know it’s tempting. But don’t.
10. A Four Point Action Plan for Making the Convention Work For You
Get Consent. As ridiculous or impossible at that might sound depending on your personal situation, consent fixes everything. With consent, even if the consenter later changes his or her mind and starts contested court proceedings, you’ve got a legal defence. Consent should always be the starting point, because it often won’t be a viable option later.
Use the Local Court System. As much as you might have no confidence whatsoever in the local system, that’s generally what the Hague Convention and local law will require if you’ve stayed in a place long enough with your children to establish their residency. Make an ally out of that local system to the degree possible.
Retain a Local Lawyer. The place you need a lawyer is where your children are currently located. A lawyer back in your home country, or in the country you hope to travel to, can do little for you if your children are stuck somewhere else. So whether you’re seeking return of children, seeking to leave with children, or attempting to stay put with children, it’s the local lawyer who will do you most good. Seek out local counsel with international experience.
Don’t Resort to Self-Help. I know despite this principle, some will do so anyway. They’ll be inspired by the odd book or movie of stories of family reunification struggle and success in the face of adversity. But more likely you could wind up in jail. The law will only be your ally if you consistently portray yourself as as the good gal or guy; act against the law, and you’ll lose all hope of that ally.
The Government of Canada produced a great booklet in 2017 called International Child Abduction: A Guide for Left-Behind Parents, which cover a lot of detail on the non-legal steps parents can take to recover children, how they can attempt to engage government help, and also affirms: “In this situation, hiring a lawyer is a very good idea. In fact, you may need to hire a lawyer not only in the country where your child is retained but also in Canada.”
Gordon S. Campbell is an international family law lawyer who helps clients with transnational custody, support and property division challenges. He’s served with the Department of Justice Canada, Attorney General of Ontario and Global Affairs Canada. Learn more at www.nofearfamilylaw.com.