CHILD ABDUCTION AND THE HAGUE CONVENTION

Child abduction is a very complicated issue.  It often involves issues of jurisdiction, meaning the need to establish which court has the authority to make or enforce a custody and access order.

If a child is abducted locally, the custodial parent should contact the local law enforcement.  It is important for a custodial parent to keep the order or the separation agreement which confirms the custody and access arrangement easily accessible.  If the child is abducted locally, the matter may be resolved through the civil courts.  The court where the child habitually resides, has the capacity to protect the child and make decisions regarding the child’s wellbeing.  Criminal charges may also be laid in cases of local abduction.  Criminal charges may be useful, as at times, they may result in a timely apprehension of the child because a warrant may be issued.

In cases of international child abduction, an application under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is necessary.  This statute deals with the wrongful removal of a child from one jurisdiction to another.  However, in order for this statute to apply to the country to which the child was taken, that country must have signed the Hague Convention.  The statute has been signed by most of Europe, Canada, the United States and some countries in South America.  The Hague Convention determines which court has jurisdiction to determine custody of the child by determining the court of the country where the child habitually resides.  An application under the Hague convention may result in an order for the return of the child to the country where the child habitually resided before the abduction.  However, ordering the return of your child is not determinative of custody.  If there is no existing order or agreement regulating the issue of custody, an application to the court may need to be brought to determine the issue.  If a custody order or agreement exists, then an application may still be brought to vary that order or agreement.  A judgment ordering the return of your child to the country in which he or she habitually resides is simply a rectification of wrongful removal or retention.  It does not terminate any of the parents’ rights to custody of, or access to, his or her child.