Although child abduction cases are generally intense and far-reaching, the most recent international abduction case I handled fortunately ended with a whimper rather than a bang. In that case, a man and a woman were living together unmarried after the birth of their only child. Although the man had acknowledged the child, the couple had unfortunately never made the trip to the Custody Register at the Joint Court of Justice. Like so many other men on the island, the man was unaware of the fact that he did not have legal custody of his child. At a certain point, the woman—who by operation of law had sole custody—left for abroad with the child without prior notice. She did not inform the man of her plans to relocate with the child, nor did she ask for his consent to take the child abroad. Initially, she was also unwilling to voluntarily hand the child over to the father at his request.
After the man left my office deeply shaken, I contacted the woman by email and politely but urgently requested that she return the child to the man within 24 hours. The woman initially refused to bring the child back to Curaçao and would not even disclose the address where she and the child were staying. At the man’s request, I subsequently filed two petitions with the Court of First Instance of Curaçao, including an application for interim relief against the woman. Among other things, we requested that the child be handed over to the man, that joint custody be established, and that the child’s principal place of residence be determined as being with the father in Curaçao. I took the position that the Curaçao court had jurisdiction to hear the requests, basing that jurisdiction at the time on the 1961 Hague Convention on the Protection of Children. As soon as the woman became aware of the legal measures taken on behalf of the man, she decided to voluntarily return to Curaçao with the minor. Not long thereafter, I received a cheerful photo of a reunited family, and in the same message the man asked me to withdraw the cases that had been filed with the Court of First Instance.
If your child is taken to another country by the other parent without your consent from his or her habitual residence, and/or if your child is retained in another country without your consent, there may be a case of international child abduction. The “Convention on the Civil Aspects of International Child Abduction of 1980” (the “Child Abduction Convention” or “Hague Child Abduction Convention,” HCAC) arose from the desire to protect children under the age of sixteen from the harmful effects of wrongful removal or retention across borders. There was also a need for procedures that ensure the immediate return of the child and safeguard access rights with the other parent. In other words, the purpose of the Child Abduction Convention is to prevent international child abduction. When an international child abduction has occurred, the basic principle is that the child should be returned as quickly as possible to the country from which he or she was taken. For Curaçao—unlike Bonaire, Sint Eustatius, and Saba—the Child Abduction Convention has not yet applied. Fortunately, that is about to change, as the Council of Ministers agreed this month to the ratification of the Hague Child Abduction Convention. This is good news for victims of abduction cases, such as left-behind parents who are in distress because, for example, their child has suddenly not returned from a holiday in the Netherlands.
The HCAC is based on reciprocity, which implies that in the near future (after ratification by Curaçao) the Convention will not only promote the return of a child abducted to Curaçao, but also the return of a child abducted from Curaçao. Following official ratification, it is highly likely that an institution (the “Central Authority”) will be established in Curaçao where parents of abducted children can seek assistance. This Central Authority will oversee compliance with the HCAC, and the left-behind parent may submit an application for return through it. Where a parent lives in a different country from the child and no contact arrangement has been established, that parent may also submit a request for international access through the Central Authority. The Central Authorities of different contracting states cooperate with one another and thereby contribute to the prompt return of the abducted child.
In cases of international child abduction, the initial aim is to achieve the voluntary return of the abducted child. If that fails and no alternative solution is reached, it is for the court of the contracting state to which the child has been abducted to decide on the return of the child to the state of the child’s habitual residence. There, in the child’s familiar environment, the child must await decisions regarding his or her (primary) residence and other relevant matters (such as access and custody).
The Hague Child Abduction Convention proceeds from the principle that the court of the child’s habitual residence is best placed to decide disputes concerning custody. The concept of the “habitual residence of the child” is determined by the facts and circumstances of the specific case. It concerns the place with which the child has the closest social connection. Other factors relevant to determining the child’s habitual residence include, for example, the duration of the child’s stay in the territory of a contracting state, the child’s nationality, the place where and the circumstances under which the child attends school, language skills, and family ties.
The Hague Child Abduction Convention has a strict framework and aims at the immediate return of the abducted child to the country of his or her habitual residence. Nevertheless, a request for return may be refused in certain cases, for example if the child objects to returning. It is also common for the abducting parent to invoke the argument that the child has become settled in the new environment. Under the HCAC, however, that argument does not succeed if less than one (1) year has elapsed between the wrongful removal or retention of the child and the submission of the application for return. In such cases, a claim based on settlement is generally not honored.
If you are interested in learning more about other grounds for refusal under the Hague Child Abduction Convention, or if you have questions about child abduction, please feel free to contact us at info@true-lawyers.com. We are more than happy to assist you.