The hague convention and child abduction

The Hague Abduction Convention is an agreement that many countries, including the United States, have signed. The purpose of the Convention is to protect children from the harmful effects of international abduction by a parent by encouraging the immediate return of abducted children to their country of origin and the effective right of access to a home. child to repair or secure. The idea is that custody and access issues should generally be dealt with by a court of competent jurisdiction in the child’s country of origin. The convention focuses on the child and provides joint relief to the country’s partners. Canada is a country that has ratified the Convention on International Child Abduction (the Convention). The convention aims to solve the growing international problem – the abduction of children from parents. The Convention seeks to restore the status quo between the parties before illegally removing the child from their country of origin, so that custody and access issues between the parties can be settled under the law of that jurisdiction. The Convention is based on the presumption that the unlawful removal or detention of a child beyond international borders, except in exceptional circumstances, is not in the best interest of the child. The abduction or detention of a child shall be considered “unlawful” if: it violates the custody of a person, institution or other body governed by the law of the country in which the child is resident – immediately before removal or retention; alone or jointly with right; and, at the time of departure or maintenance, these rights are effectively exercised either together, alone or in practice, without elimination or maintenance. If the child has been in the State party for less than one year from the date of the illegality If the removal or detention commences, a judicial or administrative authority shall immediately order the return of the child, except the cases mentioned in art.

The person, entity or other entity responsible for the care of the child does not actually take precautions at the time of departure or maintenance, does not consent to its removal or maintenance, does not accept or does not seriously threaten a child’s return to physical or psychological harm or otherwise put him in an unbearable situation. Under Article 13, the judicial or administrative authority may also refuse to order the return of the child if it is found that the child is affected, if the objects are returned and reach the age level maturity, if any, taking into account his point of view. If the child has been living in Ontario for more than one year, the child must be returned unless proven otherwise. If the country in which your child is a non-resident does not sign the agreement, the procedure and tests will be different from those of an application or convention. The defense may continue to be covered by the Child Transition .In the event of a conflict of jurisdiction In your case, if you are referring to a divorce, possession or assistance, the presumption or denial of jurisdiction may also be made under family law, divorce or the law of the land. customary, if you have filed an application under the Hague Convention, of the law amending the law on children’s rights, ask or deal with other matters within the jurisdiction they wish to deal with. These are preliminary issues that should generally be resolved at the beginning of the trial and at the beginning of the dispute. It is therefore important. 

 This agreement provides countries with a framework for cooperation in resolving international abduction cases. The main features of the Convention are as follows: Any country that has approved or acceded to the Convention must have a central authority. The Central Authority is the main point of contact for parents and other governments involved in abduction cases. The Central Authority is generally responsible for assisting in the search for abducted children, which helps to find good solutions to cases of parental abduction and facilitates the safe return of children, where appropriate.does not depend on the immigration status or nationality of a child or his or her parents. Which cases fall under the Hague Abduction Convention? Filing a case under the Convention does not guarantee that your child will be reinstated. To get your child back in a Hague case, you must first prove that your child is usually resident in one country at a convention and was unlawfully transferred to another country at the convention or continued abroad at the convention. A child is considered illegal. if this affects your custody rights and you have used these rights at the time of their disposal or maintenance or if you have used them without disposal or maintenance. The Convention should be in force between the two countries where illegal collection or stockpiling has taken place (data vary for each country); (Note: in many cases, a country participating in the Convention does not automatically associate with another country that ratifies or ratifies the Convention.) States must accept the admission of another country to the Convention under the terms specified in the Convention Code before any amendment. the contract is terminated.The child is under Sixteen  years old.

Objections to the Request for Return of a Child Under the Convention, a court may refuse to return an abducted child if it finds one of the following objections: there is a serious risk that its return will expose the exhibitor to physical or mental problems. harm. or otherwise, the child places the child in an unbearable situation: the child returns and reaches a level of age and maturity that the court can take into account his point of view; o More than a year has passed since the abduction or illegal interview took place and the child lived in his new environment, respecting human rights and respecting the freedoms of the country where he is detained. The party requesting a recall does not really take precautionary measures during an unlawful pick-up or maintenance. Note: The interpretation of these exceptions varies from country to country: Convention partners also commit to promoting respect for parental rights and access to other partners in the country. You can apply via the convention to define or enforce your access rights for your children living in partner countries. Discovery is generally allowed in The Hague cases, but it should be weighed against the demand for the speedy closure of the Hague cases. It is important to decide at the beginning of a case whether a discovery is necessary because it must be requested at the first meeting of the Tribunal or otherwise revoked.

The preparation of the legal argumentation of the intensive jurisprudence of the Hague Convention raises unusual problems in international, foreign and contractual law. They involve the courts in areas they are not used to. In many jurisdictions, the court may be completely unknown with the affairs of The Hague. Therefore, it is generally important for lawyers to assist the court on an unusual scale. Certainly, a well-established legal memo is essential. The most urgent issues in The Hague raise difficult legal issues that need to be fully clarified. The Convention requires the parent on the left to certify that the child has been removed from “habitual residence” and that the parent is “in custody under the law of that jurisdiction. However, none of these key concepts were defined in the Convention and national and international case law has increased dramatically, often making contradictory statements about their scope and importance. The courts have stated that if they were to decide under international law whether the remaining parent was in “custody” of the Hague Convention, they first had to examine the child’s right of habitual residence. to determine to what extent he lived. parental rights under this law. exist. In this context, it is often necessary to use foreign legal experts to determine the existence and scope of these rights.

CONCLUSIONS

A lawyer registered with the Hague Convention can and must frequently cite cases not only from the national jurisdiction, but also from other jurisdictions if they support the client’s position. It has become more common to refer cases from other jurisdictions in this area of ​​law than anywhere else. Courts around the world recognize that it is better to align their decisions with those of other courts around the world. For this reason, the Hague Conference on Private International Law has created a database on important Hague cases around the world. The Hague Convention cases are going so fast and are at stake for a lawyer to know this area of ​​law at the last minute. It is very important to find a lawyer with knowledge and experience of the Hague process. It is also often useful for a client whose child is abducted to hire a lawyer in his home country who can contact the Hague attorney in the country where the child was brought. Many experienced lawyers in The Hague help local lawyers deal with The Hague cases, and this type of teamwork is often the best step forward.

REFERENCES

*Tatus table: Convention of  the Civil Aspects of International Child Abduction”. Hague

Conference on Private International Law.

*NCADAT Case-law database of different jurisdictions concerning the  Hague Child Abduction

Convention.

*US State Department International Parental Child Abduction Compliance Contracting States.

*Case law and materials including Hebrew documents Hague Conference Guides to good

practice.

*The Hague Domestic Violence Project International Child Abduction and Domestic Violence

Multiple perspectives on the implications of the Hague Convention.

* Hague Conference on Private International Law, in  Acts and Documents of the Fourteenth

Session.

* The Convention was concluded by the Final Act of the Fourtheenth Session of Hague

Conference on Private International Law.

* Hague Conference on Private International Law, Hague Convention on the Civil Aspects of

International Child Abduction.