Purpose of the Hague Convention
The two major purposes of the Hague Convention are:
- To secure prompt return of children wrongfully removed or retained in any Contracting State, and
- To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
When is the Removal of a Child Wrongful?
The Convention defines removal as wrongful when:
- It is in breach of “rights of custody attributed to a person, an institution or any other body… under the law of the State in which the child was habitually resident immediately before the removal or retention” and
- At the time of removal or retention, “those rights were actually exercised… or would have been so exercised but for the removal or retention.”
To illustrate this, suppose a father takes his 13-year-old son to live with him in France despite the fact that the boy’s mother has full custody rights and her son has lived with her in the United States his entire life. The removal of the boy by his father to France is indeed wrongful because it breaches the mother’s custody rights under U.S. law and because she was exercising those rights when her son was removed. The Convention does only apply to children under the age of 16 who were habitual residents in a Contracting State immediately before the breach of custody or access rights.
The “Central Authority” acting under the Hague Convention
- The Hague Convention requires that each participating nation create a “Central Authority” to carry out the duties created in the Convention and requires that these Central Authorities “take all appropriate measures” to find these children, protect them, and assist in returning them to those who hold custody.
- Any person, institution or other body claiming wrongful removal of a child in breach of custody rights may apply to either the Central Authority of the child’s habitual residence or to the Central Authority of any other participating nation for help in securing the return of the child.
- The Central Authority of the State where the child is located must then take all appropriate measures in order to secure the voluntary return of the child.
- Along with the Central Authorities, the agencies and authorities of Contracting States also have a duty to act as quickly as possible in resolving these matters.
The “One Year Rule”
The Hague Convention has a one year rule. This means that a Contracting State must immediately order for the return of a wrongfully removed child when less than a year has passed between the removal and the commencement of proceedings in the State where the child is located. However, it does not necessarily mean that a child can never be returned if more than a year has passed. It just makes the return harder since the child may, by then, get well settled in the new environment. Therefore, the national authorities will still be under obligation to facilitate a return of the child unless it is demonstrated that the child is “now settled in the new environment.”
When a State is Not Required to Return a Child
There are also several situations in which the requested State is not required to order the return of a child:
- First, the nation is not required to order return if the person opposing return of the child is able to establish either of the following: a) that the holder of custody rights was not actually exercising those rights at the times of removal or that the holder had consented or acquiesced to the removal or b) that there would be grave risk of physical or psychological harm to the child if he or she was returned.
- Second, the national authorities may refuse to return the child if they find that the child has an objection to his / her return and is old enough and mature enough for his or her views to be taken into account.
- Finally, the return of a child may be refused if the return would subject the child to violations of his or her basic human rights or fundamental freedoms.
Additionally, the State where the child is located may examine the law and decisions of the country of the child’s habitual residence to determine if there has been wrongful removal and may also request that the applicant requesting a return to supply a determination by the country of habitual residence that removal was wrongful.
Again, the Contracting State is not making a determination on who rightfully has custody; it is only determining where a custody proceeding should properly take place. If the State finds that the child should not be returned under the Convention or an application under the Convention was not lodged in time, then the authorities of that State may make a decision on the merits of rights of custody.
Seeking “return” v. “access” to the child
Although the Convention focuses primarily on a return of a child to a habitual residence, applicants can also seek access to a child rather than return. Those seeking rights of access to a child may apply in the same manner as applying for a return of a child and the Central Authorities bear the same obligations to resolve these disputes as quickly as possible.