Not every case under the Hague Convention on the Civil Aspects of International Child Abduction will be approved and not every parent will be assisted in getting access to a wrongfully retained or abducted child. The Convention’s requirements need to be complied with for a parental abduction case to be recognized. If an applicant under the Hague Convention on the Civil Aspects of International Child Abduction does not meet the formal requirements for an application the denying state must advise the Central Authority or the applicant as to the specific reasons why it is denying an application.
When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.
One of the first questions asked is often What Will It Cost Me To Get Access Under The Hague Convention on the Civil Aspects of International Child Abduction?
The Convention does not allow for each Central Authority to pass on the costs and expenses of the administration of its administration to an applicant who is seeking access or enforcement in a wrongful retention or wrongful removal case.
However, a contracting state is allowed to charge for the expenses incurred in implementing a return order, such as the costs of locating, apprehending and returning a child to a parent.
Additionally the court may make an order that an applicant be reimbursed by the offending parent for any travel expenses, lawyers, and other expenses incurred in enforcing their rights.
Each Central Authority shall bear its own costs in applying this Convention. Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child. However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
The Hague Convention on the Civil Aspects of International Child Abduction is a multi-lateral treaty, meaning that it is a treaty between three or more states. Every state that signs it agrees to abide by all the parts of the treaty, unless they have made specific reservations from the terms of the treaty.
Parents whose children were wrongfully removed or are being wrongfully retained need to seek assistance under the Hague Convention on the Civil Aspects of International Child Abduction. When a parent seeks help for a parental abduction they need to file a case and usually have an attorney or lawyer in the state where the child is being held to help them.
One of the most important sections is the one that deals with legal aid and how foreign nationals are to be treated in another state. If a state provides legal aid to its own citizens in regards to having a case heard under the Hague Convention on the Civil Aspects of International Child Abduction, then they must provide that same access to a foreign national who is resident in their own state.
Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.
One of the stumbling blocks of international child custody cases is the fact that there may be multiple languages being used in official documents such as Custody Orders, Final Judgments of Parenting Plans and Statements of Decision. The Hague Convention has a plan for how conflicts between countries can be resolved, and part of that plan is a set up for official language options.
Official documents need to be translated into the official language of the requested country, and if that is not possible there are two options, French or English, which may be used as a default translation language.
Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English. However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority.
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.