This ppt was used in a Legal English lesson based on the 1980 Hague convention on the Abduction of Children. Legal English. Universidad Catolica de Cuyo sede San Luis. Dra. Daniela Zabala.

1. CHILD ABDUCTION
CONVENTION
Dra. Daniela Zabala.
Universidad Católica de Cuyo sede San Luis.
Seminario de Ingles Juridico 2020

2. CHILD
ABDUCTION
It is the unauthorized removal of a
minor (a child under the age of legal
adulthood) from the custody of the
child's natural parents or legally
appointed guardians.
2

3. PARENTAL CHILD
ABDUCTION
It is the unauthorized custody of a child by a family
relative (usually one or both parents) without parental
agreement and contrary to family law ruling, which may
have removed the child from the care, access and contact
of the other parent and family side. Occurring around
parental separation or divorce. This is, by far, the most
common form of child abduction. 3

4. INTERNATIONAL
CHILD ABDUCTION
It occurs when a parent, relative or acquaintance of a child leaves the
country with the child or children in violation of a custody decree or
visitation order. Another related situation is retention where children are
taken on an alleged vacation to a foreign country and are not returned.
It have serious consequences for both the child and the left-behind
parent. The child is removed, not only from contact with the other parent,
but also from his or her home environment and transplanted to a culture
with which he or she may have had no prior ties
4

5. The Convention of 25 October
1980 on the Civil Aspects of
International Child Abduction
1980 HAGUE CHILD ABDUCTION CONVENTION

6. 1980 HAGUE CHILD ABDUCTION CONVENTION
▪ It concerns the wrongful removal of child by a parent from his or
her habitual residence in violation of the custody rights of the left-
behind parent.
▪ It seeks to combat parental child abduction by providing:
- a system of co-operation between Central Authorities and
- a rapid procedure for the return of the child to the country of
the child’s habitual residence.
6

7. 1980 HAGUE CHILD ABDUCTION CONVENTION
It applies under these conditions:
▪ Child under 16 years of age
▪ Travel between Contracting States
▪ No consent of the other parent
7

8. THE RETURN MECHANISM
The Convention is based on a presumption that, save in exceptional
circumstances:
▪ the wrongful removal or retention of a child across
international boundaries is not in the interests of the child.
The return order is designed to restore the status quo which
existed before the wrongful removal or protection, and to deprive
the wrongful parent of any advantage that might otherwise be
gained by the abduction.
8

9. THE RETURN MECHANISM
The requirements to be met by an applicant for a return order are
strict. He / she must establish:
▪ that the child was habitually residing in the other State;
▪ that the removal or retention of the child constituted a breach
of custody rights attributed by the law of that State;
▪ and that the applicant was actually exercising those rights at
the time of the wrongful removal or retention.
9

10. THE RETURN MECHANISM
The application could be rejected:
▪ if consent or subsequent acquiescence to the removal
can be shown,
▪ or if there is a grave risk that return would expose the
child to physical or psychological harm or otherwise place
the child in an intolerable situation.
▪ if the child objects to being returned, and he/she has
attained sufficient age and maturity. 10

11. THE RETURN MECHANISM
The application could be rejected:
▪ if the application was made a year after the removal
or retention and the child is now settled in his / her
new environment.
▪ if return would not be permitted by the fundamental
rules relating to the protection of human rights and
fundamental freedoms of the State addressed.
11

12. THE RETURN MECHANISM
▪ A return order is not a custody determination.
▪ It is simply an order that the child be returned to the
jurisdiction which is most appropriate to determine
custody and access.
▪ The Convention does not deal with the merits of
custody and access, which are reserved for the
authorities of the State of habitual residence.
12

13. THE 1980 HAGUE
CONVENTION
It has contributed to resolving thousands of abduction cases
and has served as a deterrent to many others through the
clarity of its message (abduction is harmful to children, who
have a right to contact with both parents) and through the
simplicity of its central remedy (the return order).
13

14. THE 1980 HAGUE
CONVENTION
With currently more than 90 Contracting States, the 1980
Hague Convention can be viewed as one of the most
successful family law instruments to be completed under the
auspices of the Hague Conference on Private International
Law.
14

15. THE 1980 HAGUE
CONVENTION
The operation of the 1980 Hague Convention has been further
strengthened by complementing provisions in the Convention
of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in Respect of
Parental Responsibility and Measures for the Protection of
Children.
15

16. A CASE LAW:E.S. s/ Reintegro de hijo
▪ Facts
The child was born in 2006 in Amsterdam. His parents had celebrated a Registered
Union in 2005 in the Amsterdam Civil Registry, which was dissolved by Court order
on 4 April 2007. At the request of the father, a provisional and supervised visitation
order was settled by Dutch authorities; the father's contact was extended by
different decisions in 2007 and 2008 - even though the mother had introduced
violence allegations against him. The Dutch courts also stated that both parents
had rights of custody because the child had been born during their Registered
Union. Therefore, the mother had to inform the father in writing, on a monthly basis,
of important issues regarding the child or his patrimony and to consult the father as
regards any relevant decisions in this regard. 16

17. A CASE LAW:E.S. s/ Reintegro de hijo
▪ Facts
Some time between December 2008 and January 2009, the mother unilaterally
removed the child to Argentina without the father's consent or his subsequent
acquiescence to the removal. On 26 January 2009, the father requested the return
of the child through the Dutch Central Authority.
On 23 December, 2009, the Family Court (Tribunal de Familia de Instancia Única Nº 1
de La Plata) denied the return. The father appealed the decision. On 18 April 2012,
the Appellate Court (Suprema Corte de Justicia de Buenos Aires) revoked that
decision and ordered the return of the child. The mother and the Child Protection
Advisor appealed to the Argentine Supreme Court.
17

18. A CASE LAW:E.S. s/ Reintegro de hijo
▪ Ruling
Appeal allowed and return ordered; the removal was wrongful and none of the
exceptions had been established.
▪ Grounds
Habitual Residence - Art. 3: The Supreme Court considered that the habitual
residence of the child immediately before the removal was in The Netherlands.
Rights of Custody - Art. 3: The Supreme Court considered that, according to the
Dutch judges´ understanding, both parents held rights of custody as a consequence
of the child's birth during their Registered Union. Therefore, the decision to change
the habitual residence of the child had to be taken in consultation with the father,
who exercised substantive rights arising from the right of custody. 18

19. A CASE LAW:E.S. s/ Reintegro de hijo
▪ Grounds
Grave Risk - Art. 13(1)(b):The Supreme Court noted that the exception must be interpreted in
a restrictive and strict way and stated that some of the situations contemplated in the
Convention must be proved in order to deny the return. In her reply to the request for return,
the mother had not introduced evidence of, or otherwise proved mistreatment or violence;
she had barely mentioned such matters.
Therefore, it concluded that the mother had not proved that her return to the Netherlands
would imply a grave risk to the child or that she herself was unable to enter that territory
where she had received international judicial assistance and access to housing after the
separation. Consequently, the exception was not established. Finally, the Supreme Court
concluded that the child´s return to the Netherlands did not imply a grave risk to him, rather
the potential risks to the child could be a consequence of the mother´s ascribing the situation
a traumatic element. 19

20. A CASE LAW:E.S. s/ Reintegro de hijo
▪ Grounds
Objections of the Child to a Return - Art. 13(2)
The Supreme Court noted that to establish the exception, the objection of the child
to the return to be vehement, conclusive and decisive, with the consequence that a
return would expose him to a grave risk or intolerable situation.
The simple objection of the child to return because he was settled in the new
environment was not enough. The child had been heard by a Court Child Protection
Advisor, who did not perceive any emotional disturbance beyond that to be
expected by a change of environment.
20

21. A CASE LAW: W., E. M. c. O., M. G.,
Supreme Court, June 14, 1995
▪ Facts
The parents were Argentine nationals, who had married in Argentina. On
March 1986 they traveled to Canada and lived at Guelph University in
Ontario, where the father studied and worked.
The child, a girl, was born in Canada on February 6, 1990, she was 4 at the
date of the alleged wrongful retention until then she had spent all of her
life in Canada.
21

22. A CASE LAW: W., E. M. c. O., M. G.,
Supreme Court, June 14, 1995
▪ Facts
On December 11, 1993, the mother traveled to Argentina with the girl to visit her
family. On January 4, 1994 the mother informed the father that she intended to
stay in Argentina with the child.
In February 1994 the father's return application was filed with the Ontario Central
Authority. On March 7, 1994 an Ontario Court granted custody to the father.
First instance and appellate courts in Argentina found the retention of the child
to be wrongful and ordered the return of the child to Canada. The mother
appealed to the Supreme Court.
22

23. A CASE LAW: W., E. M. c. O., M. G.,
Supreme Court, June 14, 1995
▪ Ruling
Appeal dismissed and return ordered; the mother's constitutional rights
had not been violated by the application of the Convention, nor had the
lower courts erred in their application of the Convention: the retention
was wrongful and none of the exceptions had been proved to the
standard required.
23

24. “
Every State should take care and protect the child and
his/her family. I, as Karim, Zahira and Sharif’s mother
and starting from our terrible tragedy – “the parental
abduction” – walked tirelessly so that they could be in
contact with me in harmony with cultures and
religions and so that they could recover their own
liberty and identity. While there is so much tireless
work for the rebuilding and REBONDING with his/her
family, every boy and girl – during the affective,
psychic, spiritual and physical growth – should be in
FULL CONTACT WITH HIS/HER PARENTS. Who
protects this right when such is infringed and
violated? They are not the rights of the parents; they
are the rights of the children, of infants, of childhood.”
Gabriela Arias Uriburu
24

25. 25
Thanks!
Any questions?
Please write to:
daniela.zabala26@gmail.com
adelamperezdelviso@gmail.com