International parental kidnapping.

• Author: Behrendt, Jeffrey

What can be done when a parent kidnaps a child to a foreign country?

For instance, when Rachel and Robert separated, Rachel moved back to her hometown, New York, with their only child, Leora. Since she was short of money, Rachel never bothered to get a court order formalizing her custody of Leora. Robert returned to his hometown, Ottawa. Leora would visit him there during her school holidays. This arrangement worked well for a few years. However, at the end of one summer holiday, instead of sending Leora back to New York, Robert decided to enrol her in school in Ottawa. Despite repeated phone calls from Rachel, Robert refused to return Leora.

The effects of a parental kidnapping can be devastating on the children involved. Yet, in our world of increasing mobility and increasing numbers of marriages between people of different nationalities, situations like that of Rachel and Robert are becoming increasingly common. That is why since 1980, when it was first adopted, many countries have signed a treaty known as The Hague Convention on the Civil Aspects of International Child Abduction, which deals with international parental kidnapping. The kidnapping may happen in two ways: a parent may simply take the child out of the country (known as "wrongful removal") or as in Leora's case, a parent may refuse to return the child once the child is out of the country (known as "wrongful retention").

The Hague Convention helps people in Rachel's situation. It allows Rachel to commence legal proceedings in Ontario to secure the prompt return of Leora to New York. It is important to note that under Article 16 of the Convention, a court handling these proceedings is prohibited from making any decisions regarding Leora's custody. Thus, if Rachel starts legal proceedings under the Convention, Robert cannot argue that he should have custody of Leora. Similarly, even if Robert starts a separate proceeding for custody of Leora, the court will not grant him this because of the proceedings under the Convention. The idea behind Article 16 is that it is in Leora's best interests that custody decisions be made by the court where she lived prior to being kidnapped. Once Leora is back in New York, the New York courts can deal with any concerns regarding custody.

If Rachel brings legal under the Hague Convention, the first issue is whether the Hague Convention applies to her case. According to Article 4, the Convention does not apply if Leora is 16 years or older, or if...