What is child abduction?
In legal terms, child abduction is the removal of a child from his or her habitual place of residence by one of the parents or custodial parent, without the consent and agreement of the (other) custodian or parent. Although it might not be immediately obvious, not returning the child on time, as agreed, after a holiday abroad or after a family visit to the country of origin also counts as child abduction. The same holds for expat families living in The Netherlands for short periods of time or for families living apart most of the time. In these cases, establishing the habitual place of residence of a child is more difficult than may seem at first sight.
Recent case law indicates an increase in the number of child abduction cases. Although each case has its unique circumstances, the increased dynamics of the global work force may be one reason for this development.
The Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (1980) is a legal tool. It is meant to help a/the custodial parent regain access to the abducted child. This tool facilitates the return of the minor to his or her habitual place of residence. By appointing a Central Authority in each country, the signatory parties have agreed to co-operate towards the immediate return of the abducted child to his or her habitual place of residence.
The custodial parent can seek assistance from the Central Authority of his or her country of residence. This can be done within one year from the date of abduction. Upon this request, the Central Authority will contact the Central Authority in the country where the child has been removed to. This, in order to quickly return the child to its habitual place of residence. It is advisable, however, that the parent also notifies the police, filing an official complaint for abduction.
Sadly, abductions also happen in countries that are not signatory parties to the Convention. As awareness on such cases has grown internationally, case law catches up with reality. Even when a child has been held in a country that is not a signatory to the Convention against the will of the other custodian parent, quite often they manage to negotiate the return of the child via diplomatic channels. Needless to say, but good to reiterate: countries that are not signatories to the Convention are under no obligation to co-operate.
Is the Central Authority to lose its monopoly position in the near future?
The Eerste Kamer (Dutch Senate) has received a draft law asking to end the monopoly position of the Central Authority in cases of international child abduction. The custodial parent whose child has been abducted might soon be able to take action by hiring a specialised lawyer, should the draft law be passed. This would hopefully speed up proceedings, as well as widening the spectrum of available legal tools.
The mere thought of having to deal with child abduction is harrowing. Prevention is always better than having to resort to cure. Abduction might be prevented by hiding the children’s passports, keeping the channels of communication with the inlaws open or informing the police. It is essential that the parents’ problems remain negotiable; cross-border mediation has prooved to be succesful.
Don’t hesitate to contact us if your child has been abducted, if you are contemplating the abduction of your child or if you are aware of a situation where child abductions occur. Our lawyers have extensive expertise in dealing with cases of international child abduction and are happy to assist you.
Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.
Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.
Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.
