As regular readers of our blog know well, the Hague Convention on Child Abduction – or to give it its proper title, the Hague Convention on the International Aspects of Child Abduction – is of primary importance in preventing inter-country abductions. Before the introduction of the Hague Convention, if a child was abducted from one country to another, the parent or parents had to start proceedings in the country to which the child had been taken. When the Convention was being negotiated in the 1970s and 80s, the heart-breaking and eye catching cases were where a child had been taken from a parent or both parents by a third party, often a relative but sometimes a stranger. It quickly became apparent though that in fact most cases of cross-country child removal arose from one parent removing the child from the other. The Hague Convention tackled the problem by establishing two broad principles:-
(a) The principle that if a party has “Rights of Custody” they can use the Convention to assist them; and
(b) That the country where the child was habitually resident prior to his or her removal should be the one that decides the long term issues of custody, visitation etc.
This meant then that the only proceedings that needed to take place in the country to which the child had been taken were summary proceedings enforcing a return. The courts of the country to which the child had been taken were not involved in arguments about the merit of who should have custody etc.
Initially the Convention received widespread support through the Western hemisphere. Slowly but surely countries that initially held out (e.g. Belgium) have acceded to the Convention. Now there have been two very significant accessions to the Convention that move it beyond the “Western hemisphere club.” Japan and now Russia have joined.
It is slightly too soon for parents in this distressing situation to rejoice. In both countries the legal machinery has to be established. There has to be a central authority with responsibility to deal on a reciprocal basis with other countries to handle incoming and outgoing requests for return. There needs to be judicial training so that judges understand what is expected of them. Lastly there has to be an effective means of enforcing the orders the judges make.
Russia has indicated that it is not applying the Convention retrospectively. It is not clear whether that is a fixed policy decision, or whether it is merely a pragmatic decision to enable the Convention to be put into effect in a manageable way.
In any case, the “automatic return” that the Convention tries to achieve does not apply after a year has elapsed from the abduction, unless there are particular circumstances.
It is to be hoped that the significant extension by these two influential countries will set an example for others to follow.