Parents running away with their children into foreign countries is a common problem. In order to solve this problem the international community created the 1980 Hague Convention on the Civil Aspects of Child Abduction which Convention makes it far easier for these children to be returned.
The 1980 Hague Convention defines ‘child abduction’ as a child who is removed from the country of habitual residence without the consent of the left-behind parent. It holds that in such case the child has to be returned to the country abducted from, unless the child will be harmed if returned.
- To assist in tracing a missing child within their territory, and
- Assist the left behind parent institute proceedings so that the child is returned.
Court proceedings requiring that a child is returned are usually cheap. The lawyers who file child abduction court petitions usually charge high fees. In some countries child abduction cases are dealt by the state attorneys, therefore the left behind parent won’t need to fork out any expenses in lawyer fees. A good number of countries, however, do not cover for legal fees or provide state attorneys to represent the left-behind parent.
If the abducting parent does not return voluntarily, the left behind parent demand that civil or criminal legal proceedings are instituted against the abducting parent in the foreign country. Most child abduction cases are solved through civil proceedings by applying the 1980 Hague Convention. A small number of child abduction cases are solved through criminal proceedings, i.e. having the abducting parent returned to the former country to face child abduction charges.
Yes. All EU member states, except for Denmark, are bound by EC Regulation 2201/2003. This regulation provides that child abduction cases are to be decided within a 6 week time period. EC Regulation 2201/2003 also narrows down the defences which the abducting parent may raise against the return.
EC Regulation 2201/2003 also provides that notwithstanding a judgment of non-return the court from the country of habitual residence of the child may order a return. Such an order for return is enforceable in the country where the child has been abducted into. This procedure is known as a ‘trumping order’, as the court in the state of former habitual residence over-rides the order of non-return in the country where the child is abducted from.
However, experienced child abduction lawyers concur that it is the judge who presides over a child abduction case who makes or breaks a case. A judge who is inexperienced in child abduction matters will err easily and usually such judges err in favour of the abducting parent.
It is very difficult to return a child from a country that has not signed the 1980 Hague Convention. There have been cases where a child was peacefully returned from a country which did not sign the 1980 Hague Convention. Many success stories involve the intervention of the Foreign Ministry and local police of the country the child has been abducted into.
In order for the police to assist in returning the child in returning the child, it must first be established that child abduction is a criminal offence in both countries. Otherwise, the police will not be able to assist with a return. This is known as the double-criminality rule.
Court judgments delivered by the criminal court of appeal in 2016 and 2017 found that child abduction is a criminal offence. The law courts have extended the interpretation of Article 90 of the Criminal Code to include cases of parental-child abduction. Although the Criminal Court of Appeal (inferior) has confirmed this interpretation, certain lawyers are not happy with the way this article has been widened.
No. The left behind parent need not be married to the abducting parent in order for the left behind parent to benefit from the 1980 Hague Convention. A parent has sufficient custody rights, even if he or she is not married to the abducting parent.
The 1980 Hague Convention gives a very wide definition to Care and Custody. The term ‘Custody Rights’ has an autonomous when discussed within the context of the 1980 Hague Convention. That is to say a person may not have day to day care of the child and is only a parent with visitation rights, may have enough custody rights for the purpose of the 1980 Hague Convention to demand that the child is returned.
Article 3 of the Convention tries to protect children in a wide range of circumstances. It states that custody rights may arise, by operation of the law, by judicial decision or by an agreement having the force of law in the state where the child was abducted from. Therefore, a verbal promise, not to abduct the child into another country may be sufficient to invoke the 1980 Hague Convention and thereby a return order would be effected on the basis of that promise.
Child Abduction is a complicated area of private international law. Few lawyers who practice Family Law have the opportunity to specialize in Child Abduction matters. It is easy for lawyers and from staff from Central Authorities to misunderstand a child abduction case overlook the wide definition of child abduction that is granted by the 1980 Hague Convention.
It is possible that personnel at the Central Authority of Malta do not examine a case properly and offer wrong legal advice to the left behind parent. In such case one may challenge a decision of the Central Authority before the law courts. At the time of writing, a decision by the Malta Central Authority may be challenged before the Administrative Review Tribunal.