From a legal point of view, child abduction happens when the child is removed from his or her habitual place of residence by one of the parents – or any adult, for that matter, acting on behalf of the other parent – without the consent and agreement of the (other) custodian or parent.
Although it might not be immediately obvious, not returning the child on time, as agreed, after a holiday abroad or a family visit in the country of origin also counts as child abduction. The same holds good for expat families living in The Netherlands for short periods of time or for families that actually live apart most of the time. However, in these cases establishing the habitual place of residence of a child is more difficult than it may seem at first sight.
Recent case law indicates an increase in the number of child abduction cases. Although each case has its unique circumstances, the increased dynamics of the global work force may be one reason for this development.
The Hague Convention on Child Abduction
The Hague Convention on Child Abduction is a legal tool that is meant to help a/the custodial parent to regain access to the abducted child, facilitating the return of the minor to his or her habitual place of residence. By appointing a Central Authority in each country, the signatory parties have all agreed to co-operate towards the immediate return of the abducted child to his or her habitual place of residence.
At present, the custodial parent may ask for the assistance of the Central Authority in his or her country of residence, within one year from the date when the child has not been returned. Upon this request, the Central Authority in the country of the child’s habitual residence will contact the Central Authority in the country where the child has been removed to, in order to quickly return the child to its habitual place of residence. It is advisable, however, that the parent also notifies the police, filing an official complaint for abduction.
Sadly, abductions also happen into countries that are not signatory parties to the Convention. As awareness on such cases grows internationally, case law catches up with reality: even when a child has been held against the will of the custodian parent in a country that is not a signatory to the Convention, quite often the Central Authority manages to negotiate the return of the child via diplomatic channels. Needless to say, but good to reiterate: countries that are not signatories to the Convention are under no obligation to co-operate.
Is the Central Authority to lose its monopoly position in the near future?
The Eerste Kamer ( Dutch Senate) has received a draft law asking to end the monopoly position of the Central Authority in cases of international child abduction. The custodial parent whose child has been abducted might soon be able to take action by ways of hiring a lawyer specialised in such cases, should the draft law be passed. This would hopefully speed up proceedings, also widening the spectrum of available legal tools.
The mere thought of having to deal with child abduction is harrowing and prevention is always better than having to resort to cure. It might be possible to prevent abduction by hiding the children’s passports, keeping the channels of communication with the in-laws open or informing the police. It is essential that the parents’ problems remain negotiable; cross-border mediation has proved to be successful.
Get help with child abduction
GMW lawyers has extensive expertise in dealing with cases of international child abduction and is happy to assist the wronged parent.
Don’t hesitate to contact me if your child has been abducted, if you are contemplating the abduction of your child or if you are aware of a situation where child abduction might occur.