International Child Abduction – A Guide to the Basic Law


By:Tre Critelli

As the world continues to get smaller and international travel more common, areas of the law once thought to be of primarily local jurisdiction are now turning out to have international complications. Nowhere is this more evident than in the area of family law.

Marriages between citizens of differing countries can be extremely beneficial and worthwhile, but when they break down the fight over child custody and visitation can quickly become quite complex. Simply serving a legal notice of a lawsuit on a party residing in a different country can be difficult and at times expensive. Often it requires familiarity with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters, something few attorneys have any experience with. Further complications develop when one spouse decides to take matters into their own hands and simply disappears with the child, returning to their homeland.

In order to provide a remedy for such “abductions,” the international community came up with the Hague Convention on the Civil Aspects of International Child Abduction. This Convention aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State (i.e. country) of their habitual residence. As of this date, some 55 countries are signatories to the Convention. Some of these countries, however, are more than reluctant to comply with the terms of the Convention despite the fact that they have signed it.

Utilization of the Convention is fairly straightforward. Each country that has signed the Convention has a Central Authority to which an aggrieved parent may apply for assistance. An aggrieved parent is one whose child has been taken. That Central Authority will contact the Central Authority of the country to which the child has been taken. An attempt will then be made to locate the child and obtain a voluntary return. In the event that the parent refuses to return the child, a lawsuit is brought on behalf of the aggrieved parent to compel the return of the child.

As an example, if a child was taken from her residence in the state of Iowa and brought to London, England by her mother, the child’s father would contact the U.S. Central Authority, the U.S. Department of State, Office of Children’s Issues. They would assist the father in completing a Petition for Return of Child which would be filed with the Central Authority of England and Wales, the International Child Abduction and Contact Unit. The authorities in England would attempt to get the mother to return to Iowa with the child. If they were unsuccessful, then the father would bring a lawsuit against the mother in the English court system. The same process would be used if the child was resident in London, England and was wrongfully brought to the State of Iowa by her father: the mother would contact the Central Authority in London which would in turn contact the Central Authority in the United States. If unsuccessful, she would file a lawsuit in the US court where the child was located.

Once a lawsuit is filed, in order to win a case of wrongful removal or retention under the Hague Convention, the aggrieved parent must show that:

(1) the child was “habitually resident” in the country before being removed;

(2) the child’s removal was in breach of the “rights of custody” of “a person, an institution or any other body;” and

(3) that those rights “were actually exercised at the time of removal or would have been so exercised in the absence of his removal.” See Hague Convention, Art. 3.

As one would expect, there has been a significant amount of jurisprudence (legal theory) develop as it concerns the above terms. Courts have concluded that the term “habitually resident” refers to a child’s customary residence prior to his or her removal but focuses not upon a child’s domicile or legal residence but rather where the child physically lived for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective. In other words, where the child likely considered its home.

“Rights of custody,”” meanwhile, include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. These rights may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

After the aggrieved parent has shown the court that the child was wrongfully abducted, the burden shifts to the opposing parent to show by clear and convincing evidence why the child should not be returned. Under the Convention, it is an affirmative defense if:

(1) the person seeking return of the child consented to or subsequently acquiesced in the removal or retention;

(2) the proceeding was commenced more than one year after the removal of the child;

(3) the children have become well-settled in their new environment; and

(4) there is a grave risk that the return of the children would expose them to physical or psychological harm.

Court decisions on this matter are quite clear that acquiescence under the Convention requires either an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time. Acquiescence has been held to be a question of subjective intent. Many lawsuits in international child abduction matters focus upon whether or not one of the parents agreed or consented to the removal of the child.

Parents should be aware of the “one year” defense. Commencement of proceedings, as used in Article 12 of the Convention, means the filing of a civil petition for relief in any court which has jurisdiction in the place where the child is located at the time the petition is filed. Once the location of the child is known, the clock starts to run. However, Article 12 goes on to state that “even where the proceedings have been commenced after the expiration of the period of one year…, [the court] shall also order return of the child, unless it is demonstrated that the child is now settled it its new environment.” Hague Convention, Article 12. As for this “well settled” exception, it should be noted that the court retains the discretion to order the children returned even if an exception applies. Nor is a court obligated to take into account the child’s wishes.

Finally, Article 13(b) of the Hague Convention allows a court to deny return of a child to the country of habitual residence if “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.” Generally speaking, such a risk arises in two situations: (1) imminent danger such as war, famine, or disease; or (2) when there is likely to be serious abuse or neglect and the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. As a parent, you will be expected to provide compelling evidence that the child will in all likelihood be in danger if returned.

As should be no surprise, international child abduction matters are extremely complex, both in legal substance and procedure. In the unfortunate event that your child has been abducted, you should contact an attorney experienced in the area of international child abduction immediately. Time is of the essence, and a quick response can often be the difference between a voluntary return of the child and a long, expensive court battle in a foreign country.

For additional information concerning International Child Abduction, please see the U.S. Department of State, Office of Children’s Issues: http://www.travel.state.gov/abduction/abduction_580.html

For assistance in locating qualified lawyers, please see http://www.critellilaw.com

Article Source: http://EzineArticles.com/?expert=Tre_Critelli

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Morocco – Norway International Child Abduction Inter-Governmental Battle


There are reports from Norway of an international re-abduction case involving the Norwegian Foreign Ministry, the Norwegian Embassy in Morocco and Special Forces officers of the Norwegian Navy. The case has led to an international crisis between Morocco and Norway.

Morocco is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.

The Moroccan Foreign Minister Taieb Fassi Fihri has asked that diplomats at the Norwegian embassy in Rabat be questioned and prosecuted, in connection with their alleged role in the Skah child custody case.

– Norway has broken diplomatic protocol, ethical guidelines and damaged the friendship between our two countries, the Moroccan Foreign Minister said at a press briefing Wednesday. He went on to say that Morocco was far from satisfied with Norway’s handling of the case, in which a Norwegian woman smuggled her two children out of Morocco.

Norwegian Foreign Minister Jonas Gahr Støre maintains that neither the embassy nor his department were involved in the flight, and that he therefore can see no reason for punishing anyone. 

___________

A heated dispute has arisen in Norwegian media, following reports that two special forces officers assisted a Norwegian woman in bringing her two children back to Norway, following a custody dispute with her Moroccan former husband. The two children reportedly escaped from their father’s apartment and sought refuge at the Norwegian Embassy in Rabat last July.

The Norwegian Foreign Ministry say they regarded it as a “crisis situation” and allowed the children into the embassy. Three days later an embassy official drove the children to an agreed address where the children were turned over to a person representing the mother. The children and their mother were then smuggled out of Morocco on a small sailing boat.

Defence Minister Grete Faremo confirms that two officers from the Norwegian Navy’s special forces were involved in sailing the boat when the mother and children were brought out, but that the two were on vacation at the time. However, Faremo says it is unacceptable for Defence personnel to participate in “such an operation”, even on their time off. The opposition in Parliament (Storting) have callled for a full investigation into the case.

The children’s mother had for several years sought help from the embassy, and claims that Norwegian officials earlier had not met her appeals to help her ensure enforcement of a Norwegian court order which had granted her custody of the children. There are also reports that embassy personnel and Norway’s ambassador to Morocco had been threatened by the children’s father.

Posted by Jeremy Morley
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Expert: Parental abduction never in child’s best interest


An Ontario expert familiar with parental abduction cases speaks about how children are emotionally damaged by these incidents and relates two stories of children who were found in Toronto.

Terry Smith, Program Administration for Child Find Ontario, discussed the last side effects on children who have been abducted by a parent during a phone interview. She stressed first and foremost that parental abduction is a crime. “In almost all cases a child is not abducted for the good of the child. Those cases are extremely rare. We have systems in place for when a child is in danger from another parent. Taking the law into your own hands is never the right way to go.” Smith said that for the most part parents who may not get along still do a wonderful job of co-parenting because they put the best interest of their children above all else.
Sometimes there are issues that need to be addressed which are by use of the systems that are in place. There may be reasons that the courts limit visitations for instance that a parent wants to change. By using the court system parents can work to give their children their best. “Parents may not always like the answers but the systems are managed by people who are without an emotional stake allowing them to work for what is in the best interest of the child. The system works. In the rare cases that it doesn’t work parents need to challenge the system. Instead of abducting a child a good parent will come up with an idea to make the system work better. By and large co-parenting even without liking the former spouse is being done wonderfully every day.” It’s when a parent oversteps those systems, taking off with their child that everything falls apart.
Abducting ones own child is a crime. Still the public, media and even some law authorities view parental abduction as a ‘soft crime’ placing the bigger fears with stranger abductions. It is not often stressed the seriousness of parental abduction. The scars left on the child in these cases are not visible so they tend to be overlooked. “When found kids can do wonderfully when they are helped. The children need to have support though in order to thrive and realize that they are not at fault.” While most parental abductions do not end violently some do.
Changing the public’s perspective of parental abduction is needed in order for more of these children to be found more quickly. The longer a child is on the run the more emotional damage there is and the longer it takes for the child to become a ‘real kid’ again when they are found. “When one person jumps out of line is when it goes wrong. When they feel that they are above the law their kids will suffer. Parental abduction has serious side effects on the children. Trust, identity, living a lie, everything they knew of their life is gone, having to choose one parent over another-these add up on the overall toll to the child.” When a parent makes the decision to abduct their child they tend to not be considering their child’s best interest but rather their own. Being pulled away from the world a child knows has lasting effects. Kids who have been found and reunited with their other parent have said that they felt alone and isolated, betrayed by their parents and most damaging of all felt that they were in some way responsible for their parents actions.
The Victims of Violence website states that the child victim is often depressed, has a loss of community and stability, anger, loneliness, helplessness and a fear of abandonment. Some of the children have experienced Reactive Attachment Disorder, Separation Anxiety Disorder, Overanxious Disorder, Attention-Deficit/Hyperactivity Disorder, Conduct Disorder, Disruptive Behaviour Disorder, Oppositional Defiant Disorder, eating disorders, learning disorders, regression and elimination disorders, and Post Traumatic Stress Syndrome as a result of their time on the run. Smith said that these children have to deal with a huge internal tug of war. While there are few cases in Canada where children taken in parental abductions have been murdered there are a few.
One case that Smith related dealt with a man who was angry at his ex and took their daughter in Toronto. He had threatened to kill both himself and the child. The man threw the girl off an overpass and then jumped. The child survived, the father did not. Regardless when a parent is abducting their child they are “not running on all cylinders” Smith said. Smith said that when children are found they can thrive. She related two stories about children who were found that live in the Greater Toronto Area. “One little boy that has been taken when he was four spent four years on the run. He had never been to school or a doctor. Today he is thriving. His father made sure that he had the help and support he needed to go on.” Smith continued, “Another girl had been found after thirteen years. When a child has been missing for such a long period of time they are really strangers to their parents and visa versa. While there were many adjustments that had to be made she is doing okay today.” There is one time that it is wise to take your child and ‘run.’ If you are in an abusive relationship going to a shelter is the safe thing to do. This is legal and in the best interest of both you and your child. This is not parental abduction.
This is a safety issue. Go through the proper legal systems. If you are in danger then get help. Go to a shelter or contact the police. If you don’t think the police will be of help then tell someone like your doctor, your child’s teacher or a school employee about your situation. Above all learn your legal rights.”

Read more: http://www.digitaljournal.com/article/297019#ixzz13ZGpnROw

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Children Reported Abducted in CA Usually Taken by Parents or Relatives


Written by: Holstrom, Sissung, Marks & Anderson, APLC

According to a report in the Contra Costa Times, 97 percent of child abductions reported in California are parental and family abductions. The recent discovery of a girl abducted by her mother from the San Francisco Bay area 15 years ago has given hope to other parents in similar situations.

Dean Click’s daughter, Jessica, was abducted by her mother in 1995 when the girl was 8 years old. She is now 22 and lives in another state apart from her mother. Dean Click has said he wants his daughter to know that he always wanted to see her. He hopes they can reunite, but he’s also apprehensive about what she thinks of him after all the years away.

Unfortunately, discovering children who were abducted by their parents becomes much more unlikely as time goes by. Justice Department Data cited by The National Center for Missing and Exploited Children (NCMEC) states that only 6 percent of children abducted by parents are found if they are still missing 6 months after being reported abducted. For children reported abducted by relatives and missing for over 10 years, the NCMEC reports that between 1990 and 2009, only 0.9 percent were found.

Nevertheless, the discovery of Jessica has renewed the hope of another San Francisco Bay area man whose ex-wife left town with their two children after a child-custody battle in 1997. Michael Stratton still lives in the same Walnut Creek house he lived in when his kids, Zachary and Chelsea, then 9 and 6, were taken by their mother Elizabeth Stratton. He hopes that one day the kids will try to find him. He believes his children are victims and will have suffered the negative impact of having grown up without their father.

Michael Stratton believes his ex-wife took the children because she lost primary custody to him. During the custody battle, she repeatedly accused Michael of molesting the children, which he denied. Several law enforcement agencies investigated the molestation claims, but found no evidence to support the allegations.

The National Center for Missing and Exploited Children believes the case of Dean Click’s daughter proves that children taken by relatives are still out there somewhere and there’s hope they will be found. Wendy Hill was found and arrested after a tip came in to the NCMEC. The tip was passed on to the police department of Walnut Creek who enlisted the help of the FBI.

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ABP World Group international child recovery service


ABP World Group International Child Recovery Service

The goal of ABP World Group international child recovery services is to locate, negotiate and recover your missing child. We can dispatch personnel to most locations in the world; we specialize in locating missing children up to ages 18. Areas of expertise: Parental abduction, Missing children, Kidnappings, Runaway children and Counseling.

Unfortunately in this day and time parental kidnapping happens and we are here to help you trough this difficult period. We are aware parental child abduction can be difficult to resolve, but we use professional operatives with the skills and expertise to help find a resolution.

We also provide:

• Executive protection
• Close protection high or low profile
• Surveillance
• Investigation
• Security consulting
• Medical services
• Anti kidnap logistics and planning
• Abducted and missing children recovery
• Missing person investigations
• Panic room / Safe room construction
• Risk Management

For more information, visit our web site: www.abpworld.com

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