the hague child abduction convention and domestic violence nicolas sauvage, legal officer
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The Hague Child Abduction Convention and Domestic Violence Nicolas Sauvage, Legal Officer Hague Conference on Private International Law. HAGUE CONFERENCE 116 Years of history. 2009. First Hague Conference Initiative T.M.C. Asser. 1955. 37 Convention since 1950’s - PowerPoint PPT PresentationTRANSCRIPT
The Hague Child Abduction Convention and Domestic Violence
Nicolas Sauvage, Legal OfficerHague Conference on Private International Law
HAGUE CONFERENCE
116 Years of history
1893
1955
2009
First Hague ConferenceInitiative T.M.C. Asser
37 Convention since 1950’s
69 Members (States & EC)
Statute Establishment of the
Permanent Bureau
INTERNATIONAL FAMILY LAW CONVENTIONS
1980 Hague Child Abduction Convention
1993 Hague Intercountry Adoption Convention
1996 Hague Child Protection Convention
2000 Hague Protection of Adults Convention
2007 Hague Recovery of Maintenance Convention
Based on Co-operation of
Contracting States through Central Authority-System
Background
The Hague Child Abduction Convention: protection of children against abduction
Focus
The Convention and international abduction by one parent to escape from domestic violence
The Child Hague Abduction Convention and Domestic Violence
Why a Convention on the Civil Aspects of
International Child Abduction?
I. The Child Abduction Convention: protection of children against abduction
I. The Child Abduction Convention: protection of children against abduction
Austria (party to the Convention)
Russia (not party to the
Convention)
Situation without the Convention(example)
Shared custody
Manages to obtain
exclusive custody
As a result,
One parent has the right to live with the child in Austria,
while the other parent has also the right to live with
the child in Russiathen starts the spiral of
abduction
I. The Child Abduction Convention: protection of children against abduction
State B (party to the Convention)
State A (party to the Convention)
Keystone of the Convention
Custody rights
Habitual residence
Only one State shall decide upon custody rights:
The State of the habitual residence of the child
I. The Child Abduction Convention: protection of children against abduction
Austria (party to the Convention)
The USA (party to the Convention)
Situation under the Convention(example)
shared custody
1) Interdiction for US courts to decide upon custody rights
2) US courts shall order the return of the child to Austria
However, the Convention provides for exceptions to the return of the child
Habitual residence
81 States Parties to the Child Abduction Convention
I. The Child Abduction Convention: protection of children against abduction
I. The Child Abduction Convention: protection of children against abduction
The taking person in Convention cases
(2003):– 68 % = the mother of the child or the children– 68 % = primary or joint primary carer of the
child– 45 % = not citizen of the State to which the
child is removed
Return of the child refused
by the courts
in 13% of applications
for return under the
Convention (2003)
I. The Child Abduction Convention: protection of children against abduction
Application of the Convention in the event of international abduction to escape from
domestic violence
II. International Child abduction to flee domestic violence
Austria (party to the Convention)
The USA(party to the Convention)
Obtaining evidence
Domestic violence is
alleged by the mother Habitual residence
shared custody
1 ) to establish the existence of domestic violence
2 ) to determine whether there is a safe place of return
-Family context-Social context-Rights of the parents-Police / Criminal background-Social services…
-Family context-Social context-Rights of the parents / -Police / Criminal background-Social services…
II. International Child abduction to flee domestic violence
• The keystone of the ConventionOnly one State shall decide upon custody rights
=The State of the habitual residence of the child
• Under very specific conditions in the Convention, a return can be refused by the courts of the State to which the child has been removed.
II. International Child abduction to flee domestic violence
However, if the courts of a State refuse the return of children in too many cases
may undermine the deal made by the States parties in ratifying the Convention
may undermine the whole system of co-operation against abduction
II. International Child abduction to flee domestic violence
Difficult question:
How to protect the safety of the child as well as the mother
…without undermining the Hague Convention mechanism and the international co-operation in place to protect children against wrongful removal?
Answer: Very different approaches have been taken depending on jurisdictions concerned
One exception is particularly relevant in domestic violence cases (Article 13 b)) :
Return can be refused if the taking person establishes that
there is a “grave risk” that the return of the child would expose him/her to “physical or psychological harm or otherwise place the child in an intolerable situation”.
II. International Child abduction to flee domestic violence
Protection of child and mother and safeguarding the mechanism of the Convention
Should the judges admit more flexibility to refuse the return of the child?
An increasing number of judges develop specific mechanisms of co-operation in order to ensure a “Safe return”:
II. International Child abduction to flee domestic violence
Protection of child and mother and safeguarding the mechanism of the Convention
Should the judges and Central Authorities look for safe return of the child and the mother?
Entail a very high level of co-operation between States and their administrative and judicial bodies
Protective and provisional orders
(undertaking, mirror orders, safe harbour orders…)
• No need for radical amendment of the Convention • Little support at this point for changes in Article 13 or the
basic return procedures
II. International Child abduction to flee domestic violence
Protection of child and mother and safeguarding the mechanism of the Convention
Should the governments improve the Convention, and if so how?
The way has been opened for consideration of aProtocol to the Convention to support :
– the making (and require the recognition) of protective orders to facilitate safe return
– the use of direct judicial communications between judges in Convention cases
Thank you for your attention,
Hague Conference on Private International Law | Conférence de La Haye de droit international privé
www.hcch.net
6, Scheveningseweg2517 KT The Hague
The Netherlands
T +31 70 363 3303F +31 70 360 4867
E-mail [email protected]
Nicolas Sauvage, Legal Officer
Permanent Bureau of the Hague Conference in Private
International Law