The Hague Convention (On The Civil Aspects of International Child Abduction)


Source: www.sfla.co.uk

Introduction

UK residents making over 40 million visits abroad in one year and over 10 million British nationals living overseas, the continuing increase in international child custody disputes is not surprising. Matters of this nature will always be agonisingly difficult for the parents as well as the children involved.

Before the Children’s Act of 1989, few courts have given importance to children having continuous contact with the parent who was forced to leave home due to marital separation. There are instances where a parent had to go to prison for obstructing contact or resorting to parental abduction. The gravity of the negative effect of circumstances such as these on the children and their relationship with the other parent cannot be underestimated.

The residence order replaces the custody order and offers flexibility in accommodating various shared case arrangements. It ensures that both parents know and feel that they have a continuing role to play in the lives of their children despite the separation. A shared residence order is more advantageous to all concerned, as it does not deprive any parent or the children the right to spend time together.

There is no intention to take away parental responsibility from any parent by granting a residence order in favour of the other. In fact, it can be made in favour of more than one person at the same time in spite of them not living together. It can just specify the periods the child will spend on each household concerned.

The Hague Convention

The Hague Convention is a treaty that was concluded with the firm conviction that the children’s interest is of paramount importance in matters affecting their custody. It aims to protect the children internationally from the harmful effects of wrongful removal and retention in any contracting state, ensure their prompt return to the state of habitual residence and to secure protection for rights of access. The Hague Convention seeks to lessen international abductions by judicial remedies.

The Convention is applicable to any child who is a habitual resident in a contracting state immediately before custody or access rights have been breached. It however, ceases to apply when the child reaches the age of 16 years.

Central Authorities

All contracting states shall designate their own Central Authority, which shall cooperate with each other in achieving the objectives of the Convention. They are to take all appropriate actions towards the main aim of ensuring the safe and speedy return of children wrongfully removed or retained. The Central Authority for England and Wales is the Child Abduction Unit.

The United Kingdom is part of two international conventions concerning the return of a child who has been abducted. One is the above mentioned Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children.

Either one or both conventions are in force between the United Kingdom and the countries of: Argentina, Australia, Austria, Bahamas, Belgium, Belize, Bosnia Herzegovina, Burkina Faso Israel; Canada, Chile, Croatia, Cyprus, Denmark, Ecuador, Finland, France, Germany, Greece, Honduras, Hungary, Italy, Luxembourg, Macedonia, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Poland Portugal, Republic of Ireland, Romania, St. Kitts and Nevis, Slovenia, Spain, Sweden, Switzerland, United States of America and Zimbabwe.

Child Abduction

It is a criminal offense in England and Wales under the Child Abduction Act of 1984 for a parent or guardian of a child, or any person who has a custody/residence order relating to the child to take or send the child out of the United Kingdom without the consent of any other person or persons having rights to the child. There are several possible scenarios in child abduction.

When your child has been taken to a convention country, you should contact the Child Abduction Unit. The questionnaire that shall be sent to you should be accomplished and sent back with photographs of the missing child and the person who has taken the child. Any relevant information explaining the circumstances would be of great help in locating the child. However, the case must fall within the requirements of the convention.

If your child has been taken to a non-convention country, the Foreign and Commonwealth Offices will be able to advise you on what to do. Establish as soon as possible what your parental rights are and the childcare and control practices prevailing in the country concerned. The Consular Division of the Foreign and Commonwealth Offices can provide a list of local lawyers but can neither give legal advice nor act as legal representative.

If you do not know where your child has been taken, it is best to alert the local police station so a Port Alert can be initiated to circulate your child’s name to all UK points of departure. After which, you should also contact the Lord Chancellor’s Department Child Abduction Unit. If your child has been abducted but is still within the United Kingdom, you should know that court orders made in one part of UK is recognised and enforced in all parts.

Being Ready

If you feel that the threat of removal is real and imminent, you must keep the following information ready:

    • the child’s full name, place and date of birth, passport number, date and place of issue and physical description
    • the full name, aliases, place and date of birth, passport details, occupation, departure details and ties to foreign countries of the person who has taken the child
  • the copies of all pertinent documents such as agreements and court orders, child’s birth certificate, photographs of the child and the person who has taken the child.

Always in circumstances like these, one or both parents involved in the dispute actually believe they have more right than the other over the child. But almost always, it is the children who suffer, while the two persons who supposedly care so much for them eventually end up hurting them instead.

Published by: ABP World Group International Child Recovery Services

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It Shouldn`t Hurt To Be A Child


Source: Victims Of Violence 

INTRODUCTION

It is estimated that a child goes missing every 9 minutes in Canada. When we think of child abduction, we often picture a stranger snatching our child as they walk home from school. However, the majority of child abductions are committed by someone the child knows and, in many cases, the abductor is a parent. There were 237 parental abductions in 2009, compared to 50 stranger abductions. Parental Abduction is defined as, “the wilful taking of a child with the intent of depriving the other parent, guardian or any other person having lawful care and charge of that child of the possession of that child.”(RCMP). This may at first seem like a benign form of abduction, but it is important to realize that parental abduction is a crime and can have a serious impact on the left-behind parent, the family, and the abducted child.

MOTIVES FOR PARENTAL ABDUCTION

Parents may abduct their children for several different reasons. A common motive is for revenge and as a power play. These parents believe that they have not been treated fairly in a custody battle and may feel misrepresented in court. They will take their child both to hurt the other parent, and simply to assert that they are capable of doing so. Some parents abduct their child out of fear for the child’s safety. This is common in cases where a spouse, usually the wife, is abused by her partner. She will usually take her child to protect him or her from abuse. Shares custody parents may fear that their child is subject to neglect and endangerment when with the other parent.

PROFILE OF ABDUCTORS

There are a number of factors that may contribute to parental abduction including; socioeconomic status, psychological and sociological issues, the relationship between the parent and the child, and the child’s age. The following is a list of characteristics that theRCMP have complied in an attempt to create a general overview of the common parent abductor:

  • Both mother and father are equally likely to abduct their child. Mothers tend to do so after a court order while fathers tend to abduct the child before the court order is made.
  • Mothers tend to keep their abducted child longer than fathers. But most parental abductions are short and are resolved in about 7 days.
  • Parent abductors tend to be between the ages of 28 and 40.
  • Although socio-economic factors vary from case to case, fathers tend to be employed and mothers tend not to be.
  • Most abducted children are young, between the ages of 3 and 7. Children who are taken out of the country are usually older, over 8 years of age.
  • Male and female children are equally likely to be abducted.
  • Children are usually abducted from the home, and abductions usually take place during weekends or holidays (summer, Christmas break, March break.).
  • Various modes of transportation are used and accomplices (commonly other family members or a current partner) are used in about 50% of the cases.
  • Physical or sexual abuse is not common and only occurs in a very small percentage of these abductions.
  • Most ‘left-behind’ parents report the abduction immediately; however some will delay reporting the incident.

Although each case has different circumstances, this general profile provides police with information that will help them to locate and recover the missing child.

ABDUCTION LAWS

Parental Abduction is a criminal offence, and can be found under section 283(1) in the Criminal Code which states:

Everyone who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of the possession of that person, is guilty of

  1. an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
  2. an offence punishable on summary conviction.

There are two exceptions to this section:

  1. No one can be found guilty of the abduction offence (under sections 281 to 283) if they are able to establish that there was consent by the parent, guardian or other person having lawful possession, care or charge of that young person.
  2. No one can be found guilty of an offence under sections 280 to 283 if the court is satisfied that the abduction of the young person was “… necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.”

Importantly, a parent who abducts their child cannot make a defence by claiming that the child consented to or suggested the abduction.

Section 282(2) pertains to abduction in contravention of the custody provisions set out in a custody order and is essentially the same as what has been set out in section 283(1). However, if an individual is not proven guilty under Section 282, they can still be found guilty under Section 283(1).

INTERNATIONAL CHILD ABDUCTIONS

International child abductions involve either a parent abducting their child and taking them out of the country, or a parent in another country who prevents the child from returning home to the other parent. Revenge is often a strong motive behind this type of abduction, and the abducting parent will often try to turn the child against the other parent by convincing him/her that the other parent does not care for or love them. If you are worried that your child’s other parent may take him/her out of the country, you may notify a local passport office to have your child’s name placed on the passport control list which will put officials on alert (you need to provide certain documentation to do this). If your child is a dual-citizen, however, this may not be sufficient. The media can have either a mixed influence in abduction cases. Media attention may assist in fuelling the international search for a missing child, or it may cause the abducting parent to go into hiding.

THE HAGUE CONVENTION

Over 30 years ago, the international community recognized the need for a program to ensure cooperation between countries as a way to resolve and prevent international parental abduction cases. Canada was the second country to ratify this Convention which came into effect on December 1, 1983. The Hague convention has two objectives. The first is to ensure the prompt return of an abducted child to his/her home country and the second objective is to ensure that the rights of custody/ access to the child under the law of one contracting state are respected in the other contracting states.

The Hague convention may be applicable if:

  1. The child was a of resident to Canada immediately before the abduction
  2. The wrongful abduction was in breach of rights of custody/access to the child
  3. At the time of the abduction, the convention applied between Canada and the country to which the abducted child was taken.
  4. The child is under 16 years of age.

If the convention applies to the country (or area of the country) to which a child has been taken, authorities can provide a parent with the appropriate paperwork. The Canadian central authority will forward the documents to the foreign central authority that will then pass them along to the local judicial authority. If the child will not be returned voluntarily, a court hearing may take place. If all conditions are met and no exceptions apply, the foreign court will order the return of the child.

There are some exceptions to the Hague convention:

  • The accused parent is able to prove that the other parent consented to the child’s removal/ later acquiesced to it or was not exercising custody rights when the child was abducted/ retained.
  • The child may be at risk of physical or psychological harm or be placed in an intolerable situation if returned.
  • The child objects to being returned and is old enough and mature enough to have his/her opinion taken into account.

There are no costs associated with The Hague Convention application process; however there may be costs associated with the legal proceedings and travel costs.

There are currently 80 countries who have signed the Hague convention: Albania, Argentina, Armenia, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China (Hong Kong), China (Macao), Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, FYR of Macedonia, Georgia, Germany, Greece, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Moldova, Monaco, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, San Marino, Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Kingdom, Uruguay, USA, Uzbekistan, Venezuela, and Zimbabwe.

Note: In some countries, the Hague Convention pertains to only certain provinces, states, or territories of the country.

EFFECTS ON THE VICTIMS

The Left-Behind Family

The first thing that the left-behind family experiences is shock and disbelief. They cannot believe that their loved one has been taken away by a fellow family member. Panic as to the whereabouts of the child and how to get proper assistance will cause both the left-behind parent and any left-behind siblings to experience serious emotional distress.

The left-behind parent often has an incredibly difficult time maintaining work commitments while searching for their child. Feelings of anger, resentment, fear, anxiety, despair, loneliness, and guilt are common emotions. Most left-behind parents also suffer from disturbances in sleep patterns, loss of appetite, and severe depression. The emotional turmoil might also manifest in physical symptoms such as re-occurring headaches and nausea. And in some situations, the parent may turn to drugs or alcohol to handle the pain.

Any left-behind siblings also experience the pain of the loss of their brother/sister. Like the left-behind parents, the siblings also experience a variety of emotions and physical ailments. Since their parent is so focused on the return of the kidnapped child, the other children may feel neglected and develop hostile feelings towards the kidnapped child for taking all of the attention.

The Abducted Child

Despite the fact that the abducted child is with their parent or guardian, the experience can be terrifying and cause long-term damage. Often these children will live the life of a fugitive; dragged around by their parent from place to place in an effort to avoid authorities. The distress of suddenly losing friends and family and having to deal with constantly changing environments is an incredibly stressful experience. Even when the child is safely returned he/she will still be affected by the experience. A fear of abandonment and loss of trust are common issues for children who have been kidnapped by a parent. They may also suffer from depression, loneliness, excessive fearfulness, helplessness and anger. There are a number of mental disorders that are commonly associated with parental child abductions such as separation anxiety disorder, ADHDPTSD, eating disorders, learning disabilities and conduct disorder. As the experience of abduction can have such a traumatic effect on the child, it is important that the parent or guardian get the child proper help as soon as he or she is returned.

HELPFUL TIPS

One of the most important things a parent can do to help avoid parental abduction is to remain on good terms with the other parent and try to remain on good terms with the child’s other grandparents. If you expect that your child is at risk of abduction, make sure to talk to him or her. Explain how the custody situation works, teach them how to use the phone (especially 911 and long distance), make sure that your children know that you love them, and listen to them – information they provide may be your first clue. Keep track of what they wear on a daily basis. Keep records of all important information and store it in a safe place that is unknown or inaccessible to the other parent. As indicated earlier, it is also possible to add your child to the passport control list.

If your child is abducted by the other parent, get in touch with local authorities immediately. Provide them with any information you have and limit access to your home until law enforcement has collected any possible evidence. Contact the birth certificate office to block any application for a birth certificate by the abducting parent (you will need specific documentation to do this). Contact any search organizations such as Child Find and register your child as missing. If you plan to go to the media, ask the police for help and advice on the best way to do so. Most importantly, take care of yourself and your family, you need to be strong for your child and any other children left behind.

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Japan close to joining Hague Convention


Source: Dadsdivorce.com

Japan close to joining Hague Convention to address parental kidnappings

Because of the difference between Japanese and American laws regarding custody and kidnapping, Japan has become a safe refuge for parents who abduct their own children and want to keep them away from their American fathers.

That may no longer be the case, though, as Japan has endorsed plans to bring itself in line with the international child custody convention commonly referred to as the Hague Convention, according to an Associated Press report.

The Hague Convention is a treaty between roughly 80 countries that agree to cooperate and abide by one set of laws for the return of children removed from their home country over custody disputes. (For more information, read the article “Hague Convention – International Child Abduction Help.”)

International kidnapping of children of divorce is exacerbated when the kidnapping parent retreats to countries such as Japan, who have not signed the Hague Convention.

Japan has been seen as a safe harbor for kidnapper parents, though increased attention and foreign pressure was put on the country following the 2009 case of Christopher Savoie.

Savoie was imprisoned in Japan for trying to rescue his kidnapped children after his ex-wife broke Tennessee state law by illegally removing the children from the United States. (Watch our interview with Savoie’s lawyer shortly after his client was arrested.)

Current Japanese law allows only one parent to have custody of children in divorce cases — nearly always the mother, according to the AP story. That has kept foreign, and even Japanese fathers, from having access to their children.

The AP said the new law would allow foreign parents more access to their children. While it is expected that the Cabinet will approve the change in custody laws, the proposal must also by approved by parliament, according to the AP story.

Published by: ABP World Group International Child Recovery Services

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Custodial father sues airline for helping ex-wife abduct his son


Source: Brisbane Times

A US man has sued Japan Airlines, claiming it wrongfully helped his Japanese ex-wife leave the United States with their son, despite court orders that the child remain in California.

Scott Sawyer alleges the airline and a US travel agency agency knowingly assisted his ex-wife, Japanese national Kyoko Sawyer, take their son Wayne to Japan in December 2008 when the boy was two years old.

“There is a long list of red flags that existed in this case that should have caused the airline and travel agency to do something,” lawyer Mark Meuser said on Saturday.

The companies were “deliberately turning blind eyes to the known parental kidnapping problem endemic to Japan and the warning signals surrounding this case,” Meuser added in a statement.

Japan is the only major industrial country that has not signed the 1980 Hague Convention, which requires the return of wrongfully held children to their countries of usual residence.

When international marriages break up, Japanese courts rarely grant custody to a foreign parent, particularly fathers.

Activists say thousands of foreigners, mostly men, have been barred at some point from seeing their children once the youngsters have been taken to Japan by the estranged partners. Sawyer has not seen his son since his ex-wife took him to Japan more than two years ago.

The lawsuit was filed this week in Los Angeles Superior Court, which in 2008 approved the divorce and granted shared custody of Wayne, who is now four years old.

Sawyer’s ex-wife had been ordered to turn in her passport and to not travel with the boy outside five counties in and around Los Angeles, Meuser said.

But she left San Francisco on a flight to Japan after having obtained a Japanese passport for her son just days prior, Meuser said.

Meuser said there is no law requiring the airline and travel agency to check custody issues on travel from the United States to Japan, but said they should be held responsible nonetheless.

“They should have flagged everybody,” he said. “Wayne has red hair. He’s clearly bi-racial and he’s going to a country known to have problems with parental kidnapping. They had all the warning signs.”

Sawyer’s lawyers said airlines and travel agencies should require parents traveling alone with a minor child to Japan to obtain legal approval from the non-traveling parent authorising the child’s trip.

US State Department figures, cited by the lawyers, show that 230 cases of parental abductions involving 321 children have been opened since 1994.

Japan said in September that it was seriously considering signing the international treaty to stop child abductions, although officials said it may take time as the nation would need to change domestic laws.

Published by: ABP World Group International Child Recovery Services

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