The world is global, and so are today’s relationships. With more and more children born into international relationships, the number of travelling families grows. This explains the increase of the number of child abductions. So what can you do if you are the left-behind parent?
Do you have parental authority? That is the first question that needs answering.
For the relocation of your ex-partner with your child to qualify as child abduction, you must have parental authority according to the law of the country where you and your child had your ‘habitual residence’ at the time of the move. In some countries, fathers do not automatically acquire joint parental authority with the mother after the birth of the child. In other countries, one of the parents may lose parental authority after the relationship ends. So, to start determining which steps you can take, check that you have parental authority according to that country’s laws.
In order to be able to answer the above question, you’ll need to determine: where does your child have his or her ‘habitual residence’? Someone’s habitual residence is not always the place where they live.
The habitual residence of a child is where they have their permanent centre of interests. This may be another location than the place where they are registered. The determination of a child’s habitual residence is the crux of most abduction cases, especially if a child is younger than 4 years and has lived in different countries. This answer is not based on legalities, but on the facts, such as: how old is your child? In what countries has your child lived, and for how many years? Was the intention to settle in the country where you are now living? How integrated is your child in that country? And so on.
If your child’s habitual residence is in the country to which your ex-partner has taken the child, then the relocation is not considered to be child abduction.
Hague Convention 1980
If your child’s habitual residence was in the country where you and your child were living directly before the relocation and you have parental authority according to the law of that country, then the Hague Convention 1980 on child abduction applies within member states such as the Netherlands. Even if your child was taken from a non-member state to a member-state, the Netherlands will apply this convention. However, if your child is taken to a non-member state, things can become more complicated as you will lack the protection of the Hague Convention.
So, if you are the left-behind parent and your child is taken to the Netherlands, you can seek assistance from a family lawyer in the Netherlands who specialises in abduction cases. That lawyer can ask the Dutch court for a return order based on the Hague Convention.
The principle purpose of the Hague Convention is the return of the child. There are only a few exceptional grounds on which such a return can be refused, such as domestic violence. These refusal grounds are interpreted strictly, which makes it very difficult to avoid the return. Disputes about domestic violence dominate quite often in abduction cases, so be prepared to deal with potential allegations.
As a left-behind parent, there are tools that you can use – but act quickly and seek advice from a specialised child abduction lawyer.
Time is of essence in these cases.
If you need advice about child abduction, please contact me.
Marjet Groenleer is an attorney-at-law and associate partner at GMW lawyers in The Hague. She has been active in family law for more than 15 years, focused on on (international) divorces. Marjet is a trained divorce mediator with the vFAS (Dutch Association of Family mediators and lawyers).
Marjet has a particular interest and a profound knowledge of the international aspects of family law. She is an expert in dealing with complex financial and multi-jurisdictional cases of an international family breakdown. Because of her experience and previous jobs, she is familiar with several foreign legal systems. A great number of her clients are expats. She understands the needs of expats working for the various international organisations and companies based in The Netherlands, specifically in the area of The Hague (lsuch as EPO, Estec, OPCW, NATO, the tribunals, ICC, Shell, etc.)
Marjet worked as a lecturer in International Civil Law for several years and at the Court of Appeals in The Hague in the family law sector. Today, she is a deputy judge in the Court of Appeals in Amsterdam. Marjet publishes regularly in professional journals and keeps you informed of the various complex aspects of (international) divorces with her weblogs.