notes on The Hague Convention
Hague Convention Challenges
When the Hague treaty won’t support you
The Hague Treaty on the Civil Aspects of International Child Abduction (the Hague Convention) provides that a child who is habitually resident in one party country, and has been removed to or retained in another party country in violation of the left-behind parent's custodial rights, should be promptly returned to the country of habitual residence. However, many countries are not parties to the Convention, and even some that are parties enforce the laws only sporadically or in accordance with their own societal customs. Thus, the attorney must take special care when faced with the possibility that his client's foreign national spouse might take the children to such a country.
Hague Convention and Middle East
While Muslim countries are generally not parties to the Hague Convention (Turkey being an exception, although it does not fully comply with its treaty obligations), the problem extends also to many other countries. For example, those Asian countries with Confucian-based state family registration systems, such as China, Japan, Korea and Taiwan, are not parties to the Hague Convention (except for Hong Kong and Macau), and provide minimal assistance for the return of parentally abducted children.
Japan is a renowned safe haven for child abduction, particularly if the abducting parent is a Japanese national. In any custody battle involving a Japanese national, it would be foolish not to plan a custody order that precludes visits to Japan considering the possibility that that parent might take the child permanently to Japan. The courts in Japan will not enforce foreign custody orders and will not take any effective steps to return abducted children. The court will have minimal chance of securing anything more than extremely occasional visitation with his or her child in Japan if the other parent is Japanese. (Thus, in a case on which the author is currently working, the American father who lives in Japan has been allowed to see his child only once in 6 months, for only 2 hours, in court and with supervision).
Preventing Abductions to Non-Compliant Hague Countries
Merely because a country is a party to the Hague Convention does not mean that it will effectively enforce its treaty obligations. For example, the U.S. State Department has asserted that Mexico is "non-compliant" with the terms of the Convention. U.S State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, 2004. Mexico's noncompliance results from the following problems:
◊ Mexico has not enacted any legislation to implement the Hague Convention, which has not been integrated into the Mexican legal system.
◊ The Mexican Central Authority has no law enforcement powers and Mexican law enforcement agencies make no serious efforts to locate parentally abducted children.
◊ The burden of finding an abducted child in Mexico is left entirely to the left-behind parent. Mexican authorities provide no effective help and if the child cannot be located, nothing happens.
◊ There is an apparent lack of understanding of the Convention among the judiciary in Mexico.
◊ The Mexican Central Authority does not have adequate resources to perform its functions under the Convention.
◊ The "amparo" (a special appeal in Mexico claiming a violation of constitutional rights) is used by taking parents to block Hague proceedings indefinitely.
◊ Mexican courts are able to reconsider the facts of a Hague at any stage of the proceeding, which allows proceedings to be prolonged substantially.
Accordingly, custody orders concerning parents with strong ties to Mexico must be drafted so as to minimize the risk that the child will be taken to that country. It would be reckless to permit a Mexican parent who has expressed a desire to move to Mexico, and who has strong family or business ties to Mexico, to take a child into that country for a visit, regardless of the conditions that may be imposed to encourage the parent to bring the child back to this country.
The State Department's 2004 report establishes that similar concerns exist with respect to Austria, Colombia, Ecuador, Honduras, Mauritius, Turkey and Romania and, to a somewhat lesser extent, several other countries.
When courts receive applications to prevent children's temporary visits to their parents' country of origin, they are tempted to rely on the need to respect other countries' legal systems and on international comity to preclude them from deciding that the foreign country may not provide sufficient guarantees that the child will be returned. However, if counsel marshal extensive evidence to support the fact that a foreign country will not respect or effectively enforce an American custody order, the courts should be prepared to reach the necessary conclusion and issue an effective remedy. It is far better to prevent children being taken to such countries that do not fully respect their international treaty obligations than to attempt to procure their recovery after the fact.