4.11.4 Hague Convention

The Hague Convention is a civil procedure for parents seeking the return of or access to their children. As a civil law mechanism, the parents, not the governments, are parties to the legal action. The countries that are parties to the Convention have agreed that a child who is habitually resident in one party country and who has been removed to or retained in another party country in violation of the left-behind parent’s custodial rights shall be promptly returned to the country of habitual residence. The Convention can also help parents exercise visitation rights abroad.

There is a treaty obligation to return an abducted child below the age of 16 if application is made within 1 year from the date of the wrongful removal or retention, unless one of the exceptions to return apply. If the application for return is made after 1 year, the court may use its discretion to decide that the child has become resettled in the new country and refuse to order return of the child. In any case, a court may refuse to order a child returned in several circumstances:

• There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence.
• If the child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views. The treaty does not establish at what age children reach this level of maturity; that age and the degree of weight given to children’s views varies from country to country.
• If the return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Legal services attorneys may handle Hague Convention cases for a financially eligible person even if that person is not a U.S. citizen or lawful alien. Attorney fees may be recoverable under Article 26 of the Convention1  or the UCCJEA. The United States Central Authority for the Hague Convention will support any attorney handling a convention case with technical assistance and attorney mentoring.

• 122 U.S.C. § 9007.