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The Hague Convention on the Civil Aspects of International Child Abduction is a treaty signed by multiple countries with the aim of ensuring the prompt return of children who have been wrongfully taken or retained across international borders. There are a number of Chapters in the treaty and this is a brief overview of the convention.
The first chapter of the convention covers the scope of the convention with regards to the return of children. Those children that have been removed from one country and taken to another and their return. There are 5 articles on the first chapter of the convention.
The first article states that the object of the convention is to secure the return of the children which have been wrongly removed and to retain the rights of custody in one country as it would be in another. In other words that your custody rights in the US has the same effect in Thailand as an example. The foreign country will act to enforce those rights in theirs as well.
The removal of the child is wrongful where the child has been removed in breach of the custody rights which have been attributed to another. When the child was removed the person who has custody rights was exercising those rights over the child. This could have been by consent or by the order of the courts. This custody would have been joint or sole custody.
The convention covers children who are under the age of 16 and who has been living habitually in the country from where the child had been removed. The first chapter does make the distinction between “rights of custody” where you determine the residency of the child. As well as “rights of access” where for a limited time you can remove a child from their place of residence.
The second chapter describes the relationship between two contracting countries. Each country will designate a department who will deal with the convention. Where there is an issue, these departments in each country will deal with the matter between themselves. They will co-operate in determining the location of the child and try to secure the return of the child.
They will also exchange information on the background of the child and the custody arrangements that had been made. Where legal counsel or advice is required this will be provided. They will also exchange information as well as start the judicial process to secure the return of the child where needed.
The third chapter deals with the returning of the child. Where a custody agreement had been breached the person who claims that the custody has been breached will contact their local government. They will need to provide all the documents to show that the custody agreement had been breached. They will also need to provide enough information to identify the child. If it is a divorce then a divorce decree with the child custody showing who gets the child or children.
If the child is traced to another country. Then the relevant department in your country who deals with the convention will contact their equivalent department in the foreign country. In the foreign country their department will attempt to get the child return voluntarily. The foreign government will move to have the child returned as fast as possible. If there is a delay then they should provide a reason for the delay.
If there has been no information and a delay in the return of the child within 6 weeks after being notified. They will need to provide reasons for the delay. There was a well-known case where one parent took their child from Europe and came to Thailand with them. There was a delay as the children were being moved all the time making their location and return difficult.
The process of returning the child should be started immediately. This within 12 months after the child has been removed from custody. If it is more than 12 months later. There will be a demand for the return of the child. However, after one year they will also take into account if the child has now settled into their new environment. As the passage says in Article 12 “after 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.”
It also becomes more complicated where the foreign government is not bound to request the return of the child where they believe that the person was not exercising their custody rights when the child was removed or has consented to the removal of the child. This or where they believe that the child would be exposed to physical or psychological risk should they be returned. Where the child is older and objects to being returned. They will also take this into account.
Article 13 states “the child objects to being returned and has attained an age and degree of maturity”. So they also take the child’s opinion into account as well as the social background of the child from the initial request for return from the government. They will also take into account the law of the foreign State and may request proof that the child was wrongfully removed. They do not look at the merits of any custody issue, but only to ensure that it falls under the convention.
The final note under Chapter 3 is Article 20 which states that “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.” That ends on very broad terms.
The fourth chapter covers a different issue. Under the convention the right to access is also covered in Article 21. This is where the government contacts the foreign government to ensure the rights to access. Under the convention it states the governments should work towards “promote the peaceful enjoyment of access rights”. This request works in the same format as wanting the return of the child. They can achieve this directly or through intermediaries. See the article on this website on mediation in Thailand. This method has proven to be cost effective and not lengthy such as with the court proceedings.
The final chapter in the convention is chapter 5 and these are the general provisions of the convention. It is the lengthiest part of the convention. This mainly covers the implementation of the convention. The general provisions starts with the issue of a bond for litigation costs. There cannot be a bond for costs under the convention. Most common under Roman Dutch law there will be a deposit or bond for costs when a foreigner litigates. There also cannot be a similar formality under the convention.
When the government requests help from the foreign government. The government will do this is their official language with a translation for the foreign government. Where this is not feasible the language has to be in French or English. The foreign government may object to the language but cannot object to both French and English.
Those who live habitually in the State can request legal aid from the State. They can also request legal aid in any contracting State on the same conditions as if they lived in the State. This however is limited to only matters concerned with the application of this Convention. So you can get legal aid and advice in a foreign country where it concerns the convention only.
The governments cannot charge the applicant for their services. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child. Having said that however, the foreign government may, by making a reservation in accordance with Article 42. They can declare that it will not be bound to assume any costs referred to in the preceding paragraph. This resulting from the participation of legal counsel or advisers or from court proceedings. Except insofar as those costs may be covered by its own system of legal aid and advice. They may however where appropriate. They may direct the person who removed or retained the child, or who prevented the exercise of rights of access. To pay necessary expenses incurred by or on behalf of the applicant, including travel expenses.
The foreign government may also not intervene if they consider that the application was not well founded. They will provide their reasons for this. The foreign government may also require written authorization empowering them to act on behalf of the applicant in the matter. Note that the convention does not prohibit you as the applicant to proceed legally on your own accord to the foreign countries legal system directly.
If you have failed to recover the child by using the convention. You can apply to court directly in the foreign country and use all documents from the attempt to use the convention in court. As many States have different laws as ethnic or religious territories may have their own laws. There are two reference to “any reference to habitual residence” as well as”any reference to the law of the State” will be viewed differently. Article 31 states as follows:
Tribal or other type of territories with their own laws who have their own rules of law in respect of custody of children will not be bound to apply this Convention where a State with a unified system of law would not be bound to do so.
Finally the convention only applies to matters which occurred after the acceptance of the convention. In other words the convention is not retroactive. Nothing in this convention prevents two governments for agreeing between themselves to deviate from the convention. This in order to limit the restrictions to which the return of the child may be subjected.
The final chapter is chapter six which covers final clauses. These are mainly meant for governments in how to enter or leave the convention and of no general interest to the public.
The information contained in our website is for general information purposes only and does not constitute legal advices. For further information, please contact us.