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International Child Abduction (Hague Convention)

NACC_sizedIn recent years, there has been a dramatic rise in International Child Abductions. International Child Abductions have serious consequences for both the child and the left-behind parent. The child is abruptly removed, not only from contact with the other parent, but also from their home environment and relocated to a culture with which they may have had no prior ties to. The international abducting parent moves the child to another world with a different legal system, social structure, culture, language, religion and even relatives never before seen by them. These drastic differences in addition to the physical distance from the left-behind parent, can make locating, recovering and returning internationally abducted children complex and lengthy.

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By all means, carrying out a defense in Child Abduction is one of the toughest jobs an experienced attorney will ever have. A great deal of responsibility lies in this defense, more so when you know what is at stake. However, in order to describe what this situation implies, it is of paramount importance to know and understand exactly what The Hague Convention on the Civil Aspects of International Child Abduction means and stands for. Here is a brief summary. On August 2005, a series of countries were signatories to The Hague Convention on the Civil Aspects of International Child Abduction. Each country that is signatory to the Convention takes steps to ensure that its local, provincial or “state” governments take such measures as are necessary to implement the Convention. Each country must also designate a central secretariat (called a “Central Authority”) which then acts as the official liaison on Convention Court cases and communicates with the other signatory.

The Convention stipulates that Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objectives of this Convention. In particular, they shall take all appropriate measures to:

 

  1. Discover the whereabouts of a wrongfully removed or retained child.
  2. Prevent further harm to the child or prejudice to interested parties by causing provisional measures.
  3. Secure the voluntary return of the child.
  4. Initiate or facilitate the judicial or administrative proceedings to obtaining the return of the child and/or exercise rights of access.
  5. To facilitate the provision of legal aid.
  6. Provide administrative arrangements to secure return of child.
  7. Keep each other informed and eliminate obstacles to its application.
  8. Ensure rights of custody and access under law of one Contracting State are respected in other Contracting States.

CA-4After reading this one would ascertain that the principal objective of the Convention, aside from protecting rights of access, is to protect children from the harmful effects of cross-border abductions and wrongful retentions by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence. The principle of prompt return is also meant to serve as a deterrent to future abductions and wrongful removals. The return order is designed to restore the status quo, which existed before the wrongful removal or abduction, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction. While all of this sounds wonderfully coherent, the reality of it all differs drastically from the fact.

First off, let us describe the definition of a “prompt return” in the eyes of a Peruvian court of law. For the sake of posing an example; your child is abducted in January of 2014 and is taken to a province of Peru and you initiate restitution proceedings with only the Peruvian Central Authority in your corner and no local counsel. By the time your case reaches the first court hearing a minimum of 4 months will have gone by. Let us continue the assumption and say that a preliminary order in your favor is issued approximately 6 months later. The abducting parent appeals and it goes to the Superior Court who will take their time in reviewing pertinent information regarding this case. Some 10 months later (optimistically in your favor still), the Superior Court upholds the initial ruling in your favor and orders the return of your child to his habitual residence. The abducting parent again enters a motion before the Court known as “Cassation” which is a sort of High Court of Appeals in Peru, which has the power to reverse the decisions of the inferior courts. This court issues a ruling some 24 months after the motion is initiated upholding previous judgment in your favor and orders the return of your child to his habitual residence. In summary, a case of this nature can easily take up to four years before you can really see a tangible win in your favor. During this time, a presiding judge can also determine that your child has already established Peru as his new habitual residence.

This by no means is meant as a cynical or facetious depiction of The Hague Convention on the Civil Aspects of International Child Abduction, on the contrary, while the treaty itself is to be commended, the information contained herein is provided in an effort to grant you a realistic glimpse of the glacial speed at which the Peruvian Justice System moves and the undeniably paramount need to have private counsel pushing a strategic defense forward and cutting down on the aforementioned time by two thirds on average. The Convention brings hope to those who face the tragedy of experiencing such abductions. The common ground on which the members of the Convention operate has certainly brought home thousands of children, whom may have never been located and brought home without it. The Hague Convention speaks volumes to the shared feeling of protecting young children across the world from abduction. While there is still much to learn in regards to bettering the convention’s policies and procedures, the groundwork that has already been laid is inspirational and encouraging to say the least.

There are some exceptions that do apply however when you retain proper and experienced counsel to lead you through this process which can ultimately cut lead times by up to 75% of the aforementioned. Be sure to Contact Us to discus your case.