An overview of what the Convention is, how it works, and what private investigators need to know when working international child abductions and custody disputes that cross borders
What is it?
The Hague Convention on the Civil Aspects of International Child Abduction is an international civil treaty to protect children abducted from and held outside their home countries, create a procedure for their proper return, and ensure parental custody rights are respected. As of November 2022, 101 countries participate in the treaty.
How It Works
Within each participating country, the treaty creates Central Authorities (Article 6) that handle child abduction cases and communicate with parents, governments, and other involved parties (Article 7). Central Authorities are also responsible for sending along important information to other participating Convention Countries and generally removing as many obstacles as possible in the search for the missing child.
When filing for an international child abduction under the Convention, decisions regarding custody may be taken into account, but a custody order is not necessary (Article 17). Parents should not wait for a custody order to file a case, especially since some aspects of the Convention are time sensitive. For example, the Convention applies up until the age of 16 (Article 4), and if a year has passed, that may be used as evidence that the child does not need to be returned.
To file a case under the Convention, a parent must be able to demonstrate that their child habitually resided in one place and was wrongfully removed to another place, thus violating the parent’s custodial rights. But the two countries — where the child lived and then was taken to — must be participating countries in the treaty. Furthermore, countries that joined the Convention later than the original date (October 25, 1980) are not automatically partners with the other participating countries. For example, Australia and Seychelles have both agreed to the Convention, but there is no treaty between them. So if a parent abducts a child from Australia to Seychelles, the Convention does not apply, and the other parent cannot use the Convention as a means to return their child. Treaty partners can vary by country but are often available on government websites under travel or legal subheadings.
Even if conditions are met for a parent to file a case under the Convention, the child’s return may still be denied. Possible reasons can include:
- if a child is settled in the new country, and a year has passed (Article 12);
- if the person caring for the child consented to the child’s removal (Article 13);
- if returning the child would cause physical or psychological harm (Article 13);
- if the child objects to their return and is of a mature enough age for their opinion to be taken into account (Article 13); or
- if a child’s fundamental human rights would be violated upon their return (Article 20).
How and When to File a Case
Cases should be filed as soon as possible, since returning a child may be more difficult after a year has passed. Waiting for custody is not necessary. Forms are available on the Hague Convention website and the U.S. State Department website.
Potential Loopholes
Even if an application is filed under the Hague Convention and a court rules that a child should be returned, many obstacles can still arise. “The Hague Child Abduction Convention is meaningless if the taking parent disappears or fails to abide by legal decisions,” says Goro Koyama, a private investigator in Japan whose agency investigates cases involving children taken to Japan from other countries. He adds that some parents may defy court rulings, ignore meetings with lawyers, hide their whereabouts, and generally avoid the court proceedings, all of which can stretch out the process of returning a child to their country of residence.
“The Hague Child Abduction Convention is meaningless if the taking parent disappears or fails to abide by legal decisions.”
Goro Koyama
Koyama explains that defiance of court decisions can harm the chances of a child’s successful return to the client-applicant, since the Hague Convention does have a time limit (one year) as well as an age limit (sixteen years). Furthermore, although the Hague Convention does not determine custody or visitation rights, the longer the taking or abducting parent has the child, the more likely that the taking parent will eventually gain custody in certain countries.
If all the proceedings do go to plan, a court hearing will take place two weeks after an application is filed, and a child can return to their habitual residence as soon as six weeks after an application is filed. However, noncompliance can cause cases to last much longer.
Issues with Working Internationally
Though the Hague Convention does provide a way to return abducted children, it is not a perfect system. In part, that’s because there are inherent challenges involved in working internationally. Different countries have different rules. Information that is widely available in some countries is not available in others, and PIs/lawyers have varied degrees of power in their respective places.
Language barriers can also become an obstacle. An abducted child’s name may be spelled several different ways in a new country, making it harder to find them in a registry system. Some countries may not have a national ID number system like Social Security, or they may have a system that’s difficult for outsiders to navigate. For example, Japan has a Koseki Family Registry and a Juminhyo Residence Registry system that Koyama describes as “too unique to Japan to be understood by non-Japanese. Furthermore, this system is entirely confidential. Only lawyers have access to them.” He adds that even Japanese citizens often don’t fully understand how these registries work.
Despite these challenges, PIs and their clients should never try to circumvent the Hague Convention and try to return the child on their own terms. Clients sometimes become frustrated with the process, but if they ignore the laws, both the client and the PI could land in big trouble.
The Role of the Private Investigator
When taking on an international child abduction case, a private investigator potentially has several roles. First the PI must determine if the case even falls under the Hague Convention guidelines, and if so, refer the client to the proper lawyers and resources. As part of the court proceedings, a PI may be asked to undertake skip-tracing or surveillance work to locate the abducting parent and/or determine whether the taking parent has abused or endangered the abducted child. Koyama cautions PIs not to try to practice law. “PIs should not make decisions based on assumptions,” he says, “but should conduct appropriate investigations while listening to the opinions of the client’s lawyer.”
PIs need to also be aware that sometimes, their client may be part of the problem. “In some cases, there is domestic violence or abuse on the client’s part,” says Koyama. “We need to ensure that there is no malicious intent on the part of our client.”
In addition to location and surveillance work, PIs must be prepared to offer emotional support as well. “Many of our clients become paranoid because of the frustration of being separated from their children,” Koyama says. “Some parents have committed suicide because they could not see their children.
“There are cases where a client is frustrated, angry, and emotionally unstable
because his or her spouse and children have suddenly left for a foreign country,” he adds. “We also have cases where the client is the perpetrator of domestic violence or abuse. In this sense, we need to analyze the client’s situation and provide appropriate counseling
calmly.”
For more information, go to the official Hague Convention PDF.
About the author:
Sarah Datta is a writer from San Diego, CA.
Resources:
“Convention on the Civil Aspects of International Child Abduction,” HCCH, Oct. 25, 1980.
“Important Features of the Hague Abduction Convention – Why the Hague Convention Matters,” U.S. Department of State – Bureau of Consular Affairs.
“International Child Abduction,” International Centre for Missing and Exploited Children.
“Hague Convention on the Civil Aspects of International Child Abduction,” Australian Government, Attorney-General’s Department.
“Child Abduction,” San Diego County District Attorney.