In international parental abduction cases, where a child has been wrongfully retained or abducted oftentimes there is a great need for evidence and documents from the home country. Some documents have to go through a local consulate, such as in Los Angeles to be recognized.
Formalisation of documents is a certification process that involves verifying the authenticity of the document, and the person who signed it, and their ability to be a signer. It is similar to having a document notarised, but with much greater respect.
Formalisation is also a process that has been used to slow down the process, stall the process or make it so burdensome that a person cannot continue. Which is one of the reasons that there was an international convention on abolishing the need for formalisation in 1961.
Article 23 in the Hague Convention on the Civil Aspects of International Child Abduction:
No legalisation or similar formality may be required in the context of this Convention.
is an outgrowth of this Article 2 from the 1961 convention shown below:
CONVENTION ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS
Article 2 reads in pertinent part:
For the purposes of the present Convention, legalisation means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears.
The Hague Convention on International Child Custody is very clear that a litigant, someone who is seeking a court’s help in seeing their child, cannot demand that a bond or other type of security be posted for the court costs.
The court costs like filing fees and court reporter’s fees may be passed on to a Petitioner, but the court cannot make hearing the case dependent upon posting a bond for fees. In Los Angeles the filing fees are a few hundred dollars, but often times, if the party is unable to pay them the filing fees will be waived upon application by the litigant for a fee waiver.
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
The Hague Convention on International Child Abduction deals with wrongful removal and wrongful retention, but it also provides for access by a non-custodial parent to a child who is being kept in a foreign country.
If a parent has a valid court order from a contracting state, that gives them access to a child, the Country where the child is currently living must provide assistance in enforcing those access rights. If there are any conditions to the visitation / access, they will be enforced by the contracting country, but the parent should still be allowed to see their child.
An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
There is a provision in the Hague Convention on the Civil Aspects of International Child Abduction, that allows a requested state to refuse to return a child that has been wrongfully removed or wrongfully retained. Under Article 20, a state does not have to return a child if the requesting state violates basic principles of human rights and fundamental freedoms. This means that once a child has been removed from a country that is unsafe or violates their basic human rights such as freedom from molestation, mutilations, torture etc., the “safe country” does not have to return the child if their court deems it in the child’s best interests.
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Under the Hague Convention on the Civil Aspects of International Child Abduction, when a child is ordered to be returned, or NOT ordered to be returned, to another country, it is not a commentary on child custody. It is a recognition of a state’s sovereign right to make decisions and their jurisdiction.
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
The purpose of the treaty is to establish guidelines and protocols for the safe investigation of international child abduction and the return of children who are wrongfully retained or wrongfully removed from another state.
The treaty does not take away a state’s power to make decision, rather it is an agreement between states on how they will use their own powers.
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
There are many procedural steps to be taken in a Hague Convention case, and just because one state makes a ruling, doesn’t mean it prevents other rulings. When a child has been abducted or wrongfully retained in a member state, if that state makes a decision on an emergency basis, the emergency ruling may not be grounds alone, to refuse to return a child to another member state.
Emergency custody decisions are made to protect a child, and they may be used to temporarily stop a process.
The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.
According to the Hague Convention On The Civil Aspects OF International Child Abduction, a case is opened, by giving notice of a Wrongful Removal or Retention of a child, commonly called a Parental Kidnapping or Abduction.
Once notice has been given of a child being wrongfully removed or retained, an investigation is done to determine if the child was TRULY wrongfully removed, before a custody determination can be made in the New Country.
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
When an abducting parent wants to delay the proceedings in a Hague Convention on the Civil Aspects of International Child Abduction case, one of the ways to do it is to make the abandoned parent go back to the court in the “habitual residence” state seeking a ruling that the child was “wrongfully taken”.
These types of cases: wrongful removal, international parental abduction, and parental alienation, are slow, painful and filled with many jurisdictional twists. It takes a skilled and experienced attorney to navigate the paths of the Hague Convention on the Civil Aspects of International Child Abduction. Our experience in this area has helped fathers and mothers be reunited with their children.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
When a child has been taken by one parent to another jurisdiction, if a Hague Child Custody case is opened, the court or administrative agency reviewing the case must determine if there was a “Wrongful Removal” of the child.
To decide if the parent who took the child did so in violation of a court order, the reviewing court, uses Article 14 of the Hague Convention on the Civil Aspects of International Child Abduction and applies the law of the jurisdiction that is the Habitual Residence of the child, that is where has the child BEEN living, and what court orders are there that control their custody.
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.