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International agreements

Many of the laws dealing with custody and guardianship in situations where multiple countries are involved, are formed by the agreements between those countries. The main convention dealing with child abduction nowadays is The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Over 85 countries have entered this convention into force. There are, however, other agreements that are related to ICA.

Some of the most notable international agreements described are:

 

International agreements prior to 1980

Prior to 1980, children’s rights were protected internationally primarily by three conventions. The first is the United Nations’ Universal Declaration of Human Rights of 1948 (UN-1948-UDHR). This declaration was signed directly after the Second World War, and is effective internationally, although some reservations exist in countries that did not ratify the declaration. Countries like Iran, Saudi Arabia, Sudan, and Pakistan have criticized the convention on the basis that it fails to take the cultural and religious context of Moslem countries, which base their law on Islamic law called Sharia, into account. Although this declaration gives an individual basic rights such as equality, basic freedoms, and ownership of property, it does not make the distinction of roles within a family and the unique position of a minor in that framework.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (EC1950-005) followed in 1950 protecting the individual rights, but again it did not highlight the position of a child. As an example, both conventions protect an individual’s right to family. Neither of these conventions, however, isolate the position of a parent or child to identify which country is to decide upon issues such as custody. In 1961 the Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants was signed. This convention attempted to delegate responsibility to one country to decide upon matters such as custody over a child. It makes reference to a child’s country of habitual residence various times, yet the criteria deciding on a child’s habitual residence are not defined in the convention. This convention did not get much international support, and has so far only been ratified in 13 countries. The lack of conventions aimed specifically at regulating custody across borders resulted in countries deciding differently on matters relating to custody.

The 1980 European Convention and The Hague Convention

In 1980, two conventions were concluded dealing with matters to regulate the proceedings within families that are situated in more than one country. On May 20th 1980, the European convention regulating matters of custody across European borders was concluded (EC1980-105). Several months later, another convention relating to family matters was signed. The Hague Convention on the Civil Aspects of International Child Abduction (HCCH-1980), or the Hague Convention for short, was convened on October 25th 1980, at the Hague Conference on Private International Law. This latter convention had a wider scope than just the European region, and it attempted to protect children from the harmful effects of their wrongful removal or retention internationally. At the time of the drafting of the resolution, the fear existed that noncustodial fathers would, generally for ideological reasons, leave behind guardian mothers with limited resources to try to get her children back. The aim of the convention was to ensure children’s prompt return to the state of their habitual residence, and to secure the protection of the rights of access. According to the legal experts dealing with international family law, this convention is the most important convention on the terrain of ICA. However, some elements of this international agreement have given rise to criticism by experts. For example, it is striking that there is no mention in the convention of the best interest of the child. Furthermore, article 13b of the convention became subject of negotiation. It states:

“Art. 13. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

“a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

“b) 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. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” (HCCH-1980, Art. 13)

This clause has given rise to opposite interpretations on how authorities are meant to decide upon whether there is a grave risk in the nature mentioned in part b of the article. The question often arises whether in cases where parents taking their children to protect them from greater harm should not be allowed to make use of article 13b of the Hague Convention. For example, this could be the case for parents escaping their violent partners, and seeking safety for themselves and for their children, which is a commonly occurring situation.

The Hague Convention is frequently subject of international criticism and debate. Different sources of international media claim it is often used for the opposite end of what it was originally designed for. Time, in co-operation with CNN published the following:

“In 1980, an international treaty was designed to return children who had been abducted by a parent who moved to another country. Back then, the people drafting the treaty thought the typical abductor would be a noncustodial father skipping town with the kids, leaving mom with little resources to try to get her children back. So what happens, three decades later, when research indicates that 68% of the abducting parents in cases under this treaty are mothers — and that many of them are fleeing abusive spouses?” (Iverac)

Despite the international criticism, the Hague Convention currently has obtained more than 85 contracting states, and is frequently being used to ensure that a judge practicing in a child’s natural surroundings decides over the child’s fate. It is notable that by mid-2011, Morocco is the only Arab state that has signed the convention from the current 85 signatory states. Another noteworthy state that has contracted to the Hague convention at a later date is Russia

The 1989 Convention on the Rights of the Child

In 1989, the United Nations concluded another convention aimed at protecting children internationally, the Convention on the Rights of the Child (UN-1989-CRC), often abbreviated UNCRC. This convention is often brought up in debates related to ICA due to its specific mention of the best interest of the child. Article 3 of the convention states the following:

  1. “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
  2. “ States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
  3. “States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” (UN-1989-CRC, Art. 3)

The definite way in which this article expresses that the best interest of the child shall be a primary consideration, and the role it gives the parents, is often reason for parents involved in ICA cases to argue that that best interest of the child has not been taken into account upon their return process. The tension that exists between this convention and the Hague Convention often gives rise to discussions. Whereas in the Hague Convention aims at restoring status quo by returning an abducted child to his or her country of habitual residence and protecting the child’s interests that way, the best interest of the child could differ from the return to the country of habitual residence. The first Secretary of the HccH Permanent Bureau, Adair Dyer, stated:

“…the obligations, which a Contracting State takes up under the Hague Convention on the Civil Aspects of International Child Abduction, are much more precise and constraining than are the obligations described in an “umbrella” Convention like CRC” (Dyer, P.1 of article)

The processes of the Hague Convention thus often gain precedence in cases of ICA over those of the UNCRC, although the latter convention must be observed in the execution of the first.

The UNCRC has been signed and ratified by all members of the United Nations, with the exception of the Unites States and Somalia. In ICA cases where the involved countries partake in both conventions, placing the nuances in interpretation becomes the choice of the legal authorities within the country deciding at that point. Due to this, confusion often occurs regarding the legal precedence of the conventions and the difference in legal platforms and judicial powers can even prove difficult for experts of international law to understand when assessing cases with different natures according to these conventions.

The European Conventions of 1996 and 2003

In 1996, the European convention on the Exercise of Children’s Rights followed. This convention gives children the opportunity to exercise their rights, and in particular in family proceedings affecting them (EC1996-160). Some countries did not sign this resolution on the basis that a minor should fall under the authority and decision of his or her legal guardian. Some of the countries that signed this treaty, such as Austria and Portugal, allow children to be heard in court in matters involving them, including cases of custody, access, contact or adoption. Portugal even appoints a separate lawyer to represent the child.

Another convention that requires authorities to incorporate various instruments that empower children’s rights is the European convention of 2003 on Contact concerning Children (EC2003-192). This convention places the best interest of the child up front and underlines the importance of contact with both parents and aims at safeguarding contact between children and their parents and other persons having family ties with children. This document indirectly obliges states to actively take part in providing a child who has been separated from one or both parents with access to these parents on a regular basis with the exception of when this is contrary to the child’s best interests. Non-signatory states to this convention are more likely to ignore international requests for support to facilitate access and contact when it has been withdrawn from a child or legal guardian.

Brussels II bis

European Council Regulation (EC) No 2201/2003 of November 27th 2003 is commonly known as Brussels II bis. This regulation concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility completely repeals Brussels II, an older regulation (EC) No 1347/2000 that entered into force March 1st 2001 (Brussels II bis, P.01).

Brussels II bis gives priority in terms of jurisdiction to the state of habitual residence of a child, although this term is not defined in the regulation. It is an important source of law for ICA cases that generally works in conjunction with the Hague Convention. Whereas the Hague Convention aims to ensure the prompt return of a child to his or her habitual state of residence, Brussels II bis only allows two sets of circumstances in which the state to which the child has been abducted has jurisdiction to decide not to return the child directly, and neither will arise in cases where there has been reasonably prompt action for the return. This regulation is affective in various European states, and is considered by many experts as a regulation enforcing the Hague Convention, although the mention of mediation is often seen as an optional tool for solving ICA cases without a court intervention. However, ICA cases often are the result of conflict and broken trust. For many parents dealing with ICA, mediation does not provide realistic solutions.

Bilateral and other multistate agreements

Various other agreements that are independent from the known international conventions exist between states. When dealing with an ICA case, it is essential to check for the interstate agreements regulating the procedures between all the involved states. No Place Like Home aims to assemble a database providing factual information regarding these agreements in the future. Due to the vast number of these agreements and the complex nature of the required research, this database will require a long time to assemble.

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