Legal Guide

What is the Hague Convention and does it apply to American Families?

Divorce is always hard when children are involved, but it’s even harder when there is an international element involved. If you face a divorce in another country, your partner is from another country than your own, or you all live in a third country, the Hague Convention may govern where your child resides post-divorce.

Here, we take a closer look at the Hague Convention and what it means for international families going through child custody, divorce, or other family law proceedings involving minor children.

What is the Hague Convention?

The Hague Convention, or it’s full title the Hague Convention on the Civil Aspects of International Child Abduction, is a key international agreement that performs two key functions:

  • It provides guidelines and processes for international child abduction cases where the ‘abductor’ is the child’s parent. Via the Hague Convention, the parent who did not ‘abduct’ the child can apply to have the child returned to their home country.
  • The Hague Convention also provides guidance on issues of international child access. In this respect, it functions much like an upholder of international custody agreements. If a parent lives in a different nation than the child’s home country, it can be harder to figure out a custody agreement than if both parents live in the same country.

This agreement was primarily designed to protect the rights of children. The general idea is that a sudden removal from the child’s home country and away from an involved parent is disruptive to the child’s daily life and can be emotionally damaging.

The Hague Convention in Action

For an example of how the Hague Convention works, let’s imagine the following scenario:

Chris and Anne live in Australia with their nine-year-old child, Bobby. Chris is from the United Kingdom and Anne is Australian. The couple lived in Chris’s hometown in Leeds but moved together to Australia when Bobby was five. As a result, Bobby is a dual Australian and British citizen.

Chris and Anne decide to get a divorce, which impacts Chris’s immigration status in Australia. Feeling concerned about this and stressed out by the ongoing divorce procedures, Chris decides to take Bobby and return to the United Kingdom without Anne’s permission. Bobby has just been removed from his country of habitual residence by one parent.

Anne is concerned for Bobby’s welfare and upset by Chris’ actions. She immediately applies to the Australian justice system to seek Bobby’s return under the Hague Convention. This application is then jointly handled by Anne’s lawyers in Australia and Chris’s lawyers in England. The courts in England are also likely involved if Chris mounts a defense to the Return Order.

Because Chris removed Bobby from his home without the knowledge of Anne, and because Australia and the United Kingdom are both signatories to the Hague Convention, the act helps Anne be reunited with Bobby. Since Anne applied for a return swiftly, Bobby was not away long enough to become a habitually resident in the United Kingdom.

As you can see, this notion of habitual residence is key to the convention. Many factors establish habitual residence including the length of time the child has been in a country, their school life, and any important relationships they have in that nation. 

The Pros and Cons of the Hague Convention

While the Hague Convention is undoubtedly a useful tool for international cooperation in family law abduction cases, and it has the child’s best interests at heart, it is not without the following potential downfalls:

  • Not all countries are signatories to the Convention. Therefore, if a child is removed from a non-signatory country, the other parent cannot seek the child’s return.
  • Each signatory nation is allowed to decide what constitutes habitual residence and timeframes. According to GlobalArrk, a non-profit that aims to enact meaningful changes to the Convention, habitual residence has sometimes been established in mere days or even weeks.
  • The Hague Convention does not adequately cover cases whereby both parents have willingly moved to a third country with their child on a trial expatriate basis.

Is America a Signatory to the Hague Convention?

Yes. America is a signatory to the Hague Convention along with other countries such as Canada, most of Europe, Australia, and New Zealand. Suppose you’re facing a situation where your child has been removed from their place of habitual residence. In that case, you need to act fast before the child’s habitual residence is established in another country. If you are in Alabama, then you should seek immediate help from a local divorce lawyer in Birmingham.

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