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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, costly and lengthy.

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But wait, it gets worse! For the fifth year in a row, the U.S. State Department has declared Peru as a “NON COMPLIANT” country when it comes to adhering to the treaty as they are simply not returning abducted children back home. Peru’s Central Authority (PCA) could care less, in fact, foregoing the treaty they would go outside the scope and even out of their way to keep the abducted kids in Peru. Moreover, it’s not just the inefficiencies of the PCA, it’s also the Peruvian courts that take about a year before your case is heard and six months before a ruling is handed down. If you win, the abducting parent will file an appeal that will not be heard for another 18 months and if they lose again they will for all intents and purposes appeal before the Peruvian Supreme Court who will basically say that by then, it will have been four to five years since your child was abducted but that now he/she/they is/are now accustomed to Peru, henceforth, this is his/her/their new Habitual Residence. The take-home message to any would-be abductor ends up being; go ahead and kidnap your kid/s to Peru, the PCA and the courts here will make sure you get to keep them for good.

By all means, carrying out a defense in Child Abduction in this country is one of the toughest jobs an 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 really means and what it stands for. Here is a brief summary for you. On August 2005, a series of countries signed The Hague Convention on the Civil Aspects of International Child Abduction. Each country that is a 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 designate a central secretariat referred to as the “Central Authority“, in Peru, the PCA is the Ministry of Women and Vulnerable Population which then acts as the official liaison on Convention Court cases and communicates with the requesting State.

The Convention stipulates that Central Authorities shall cooperate with each other and promote cooperation 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 custodial rights and access under the law of one Contracting State are respected and upheld in the 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/or 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. The return order is designed to restore to the status quo, which existed before the wrongful removal took place and to deprive the abducting parent of any advantage that might otherwise be gained by the abduction.

While the above description of the Treaty sounds wonderfully coherent and expeditious, the Peruvian reality of it all differs drastically from the text of the law.

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 son was abducted in January of 2010 and was brought to Peru by its abducting mother. Shortly thereafter, you initiate restitution proceedings with only the Peruvian Central Authority as your defense counsel. By the time your case reaches the first court hearing an average of 12 to 18 months will have gone by. Now, assuming that a preliminary order was favorable, the abducting parent has the right to appeal and so it goes to the Superior Court who will take their time in reviewing pertinent information regarding this case. Some 18 months later (optimistically in your favor still), the Superior Court upholds the initial ruling in your favor and orders the return of your son to his habitual residence. The abducting parent again enters a motion before the Court known as “Cassation” which is the Peruvian Supreme Court, 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 the 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 five 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 and decide to overturn all previous rulings and order the child to stay in Peru.

My professional depiction of how Peru manages IPCA cases under The Hague Convention on the Civil Aspects of International Child Abduction is not meant as a cynical ploy on the treaty but rather on how the PCA mismanages these cases. 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 inefficiencies with which the Peruvian Justice System moves and the undeniably paramount need to have private counsel pushing a strategic defense forward and considerably cutting down on the aforementioned time warp caused entirely by the authorities. 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 many children, who 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.

Lastly, by all means, STAY AWAY from those child recovery services. These so-called companies are comprised of mercenaries that feed on the fear of the left-behind parent and convince you that what they are doing is harmless, legal and supported by the local government when in reality it does a lot of harm to the child/ren, it is illegal and carries a long prison term when caught and there are no supporting governments that will sign off on the kidnapping of children in their soil. Custody can be won using as a sole weapon the LAW.

Be sure to Contact Us to discuss your case.