The Hague Convention on the Civil Aspects of International Child Abduction: an update after Abbott.

• Author: O'Gorman, Kevin

1. INTRODUCTION II. THE HAGUE CONVENTION III. THE HAGUE CONVENTION IN THE UNITED STATES A. Jurisdiction B. Burdens of Proof C. Emergency Injunctive Relief D. Venue, Costs, and Administrative Aspects IV. ABBOTT V. ABBOTT: MORE HAGUE CONVENTION CASES COMING TO U.S. COURTS? V. CONCLUSION I. INTRODUCTION

   The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or the "Convention") establishes the legal framework to prevent and remedy the growing phenomenon of trans-border abduction of children. (1) To achieve these goals, contracting states to the Convention undertake, among other things, to return wrongfully abducted children to their country of habitual residence. (2) Recent U.S. Supreme Court jurisprudence suggests that, in the United States, relief under the Hague Convention may be more easily accessible to abducted children and their parents.

   This paper is divided into three sections. Section I introduces the legal framework of the Hague Convention. Section II provides an overview of the U.S. statute implementing the Hague Convention with an aim toward aiding practitioners in Hague cases. Section III reviews a recent Supreme Court decision and its impact on Hague Convention cases litigated in U.S. courts.

2. THE HAGUE CONVENTION

   The Hague Convention was signed on October 25, 1980, as a result of the Fourteenth Session of the Hague Conference on Private International Law. (3) It has two primary objectives: (1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." (4)

   The Convention's forty-five articles establish the contracting states' various obligations. Among other things, the Convention seeks to safeguard "rights of custody" and "rights of access" over children wrongfully removed from one contracting state to another. (5) Under the Convention, '"rights of custody' shall include rights relating to the care of the person of the child," while '"rights of access shall include the right to take a child for a limited period of time to a place other than the child's habitual residence." (6) The removal or retention of a child is "wrongful" within the meaning of the Convention if (1) it is in breach of rights of custody (7) (2) under the law of the country where the child was habitually resident, (8) (3) those rights were being exercised at the time of removal, (9) and (4) the child is under the age of sixteen. (10)

   Articles 6 and 7 provide that each contracting state shall establish a "Central Authority" to assist with fulfilling the objectives of the Hague Convention. (11) In the United States, for example, the State Department's Office of Children's Issues serves as the central authority. (12) When a child is wrongfully removed or retained, the person who has rights of custody (frequently a so-called "left-behind parent") can apply to the central authority of the country where the child habitually resided for assistance in securing the return of the child. (13) Article 8 of the Convention specifies what information must be included in the application. (14) Upon receiving an application, the local central authority forwards it to the central authority of the country where the child is located. (15) Local organizations or attorneys may then be contacted to assist with initiating administrative or judicial proceedings to secure the return of the child. (16)

   Articles 8 to 20 of the Convention address issues related to the administrative and judicial procedures for the return of wrongfully removed children to their country of habitual residence. If a petitioner establishes that the removal of a child was wrongful within the meaning of the Convention, a competent authority (e.g., a court) in a contracting state "shall order the return of the child forthwith." (17) A petition for removal should be filed within one year of the date of removal. (18) However, even when a petition is filed more than one year after the date of removal, a competent authority "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." (19)

   The two principal defenses against removal are (1) that custody rights were not being exercised at the time of removal, or that the person having those rights consented to the child's removal, (20) and (2) that "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." (21) An authority faced with a petition for return of a child also has discretion to consider any objection by the child, if it finds the child has attained an age and level of maturity that justify such consideration. (22) Article 20 also gives competent authorities discretion to refuse a petition to return a child if the removal would be contrary to principles of human rights and fundamental freedoms. (23) Importantly, Article 19 provides that a "decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue." (24) The local courts of the country where the child was abducted from remain free to determine any underlying custody dispute. (25)

   The Convention also addresses rights of access, (26) cost bearing in Convention-related proceedings, (27) application of the Convention in federal countries, (28) and other aspects of its own procedure.

3. THE HAGUE CONVENTION IN THE UNITED STATES

   The Convention is only in force for the contracting states that have ratified or acceded to it. (29) To date, the Hague Convention is in force for eighty-two countries, including the United States. (30) Notable exceptions include: India, Japan, Russia, mainland China, and a number of African and Middle Eastern countries. (31) In the United States, the Convention has been in force since July 1, 1988, codified as the International Child Abduction Remedies Act ("ICARA"). (32)

   1. Jurisdict...