International Child Abduction: The Law – The Hague Convention
When it comes to cases of international child abduction the central source of international regulation on the issue is derived from The Hague Convention on the Civil Aspects of International Child Abduction. Germany is a member of the Hague Convention as are over eighty other countries. The other members include all the members of the EU, the USA, Russia, China and many others. The Hague Convention outlines the meaning of child abduction and states that its aim is to swiftly return children any children who have been removed from a contracting state. Emphasis is placed on the need to respect the legal parameters of the contracting states when it comes to the issue of child custody.
Here are some other points to be aware of when it comes to the Hague Convention:
- It concerns children under the age of 16,
- Each state has a central authority for issues around international child abduction. In Germany that central authority is the Federal Office 0f Justice (Bundesamt für Justiz) in Bonn,
- The central authorities in the states concerned will cooperate in order to ensure the fair and just resolution of cases,
- An applicant can make their application to the central authority of any of the contracting states to the Hague Convention,
- A case may be damaged if too much time has elapsed and this delay has resulted in the child becoming settled in their new environment.
For more information on the central authority in Germany here is a link to the German Federal Office of Justice.
Article 19 of the Convention outlines that an International Child Abduction case does not concern itself with the issues with deciding who should have custody of the child. If the parties wish to dispute the current state of custody they should consider a case specific to that area. For more information on child custody please consult our page on the topic or contact our legal team directly. In other words, cases in this area are decided on the factual issue of who has custody at the time of the case and not on who “should” have custody of the child. Bear this in mind when considering an action that involves bringing a child out of the jurisdiction.
The Law: Brussels II a-Regulation
In cases concerning EU member states there has been further legal developments in the form of the Brussels II a-Regulation. This Regulation ensures that all member states are on the same page legally when it comes to cases of international child abduction. For example the Regulation states that decisions made in this area will be uniformly recognised by the courts of the member states unless there are valid reasons not to (in accordance with Article 23).
Essentially this piece of legislation reinforces much of the law that is in the Hague Convention and reinforces the requirement that these cases be swiftly resolved to ensure the child is immediately brought back. The Regulation further states that the procedure of the case will follow that of the legal procedure of the member state in question. With this in mind it is beneficial to avail of legal assistance from the jurisdiction in question. So if your situation involves Germany make sure to contact our office directly!
The Law: Cases Involving Countries Outside the Hague Convention
Whereas cases involving Germany and EU states as well as those in the Hague Convention can be relatively straightforward it is cases involving involving other countries where major difficulties lie. This may mean where a child was brought from Germany to a country that is not part of the Hague Convention (for example Nigeria or Afghanistan) that the situation is more difficult. In this case it is strongly advised to avail of legal assistance as they will be able to assist you in working out an appropriate course of action. Having reliable and competent legal counsel to rely on can make a huge difference. With such cooperation it will be more straightforward when it comes to knowing who to contact and how to resolve the issue in a more favourable manner. In such cases it is worth bearing in mind that the law and culture may be completely different to German law. However, availing of help will ensure you not face these challenges alone.
Case Law: International Child Abduction
Should you avail of our services our lawyers will represent you both inside and out of court. We are aware that in such cases resolving the issues outside of the courtroom can be best for all involved. We will aim to achieve this should it be deemed the best course of action. However, should the issue reach the courtroom it is worthwhile knowing the precedent involved in such cases.
For example, in a recent decision by the Oberlandesgericht (the Higher Regional Court) of Celle – a city in the German state of Niedersachsen (Lower Saxony) – a case was brought before the court concerning an abduction from the USA to Germany (case file number: 18 UF 171/11). In this case the mother brought the child in question to Germany. The mother was a German-American citizen while the father was an American citizen. This action was agreed upon with the father of the child for a period stretching from summer 2010 until the beginning of 2012. However, the mother did not return with the child following the end of this timeframe. As a German-American citizen they wished to remain in Germany with the child arguing that the child was now settled in Germany. However, the court did not allow for this argument in this case as a means of breaching the agreement reached the custodial guardians of the child.
Another argument brought forward by the mother was that ruling that the child should return to the USA would mean they would be separated from their mother. This was also rejected by the court as they ruled that the mother was not prevented from returning to the USA with the child. The child was returned to the USA. The spokesperson for the court Dr. Götz Wettich stated that the rights of the father were “exactly the same as the mother” and that permitting such child abduction to continue would constitute “a form of vigilante justice.”