With the increased mobility we find in the modern world and the increasing number of relationships formed between people of different nationalities and different cultures, it is not surprising that problems arise.
During an ‘ordinary’ divorce, where both parents continue to live in the same town or area, the question of who should have primary responsibility for looking after the children and the arrangements for giving the other parent the right to see them often cause endless trouble, heated arguments and much expense.
It is, of course, much worse when one of the parents will be living on the other side of the world and where, obviously, the opportunities for the parent who does not have day-to-day control of the children to see those children will be few and far between. If you add the problem that there may be cultural and religious differences between the parties – and a strong tradition in some places that the father has an inalienable right to bring up his children – then we can understand how these huge problems are amplified still further.
So it is not surprising that some parents, dissatisfied by the arrangements dictated by a court (or fearful of what they could be) decide to take matters into their own hands. This is wrong and dangerous but, sadly, it happens all too often: about 250,000 cases per year around the world.
Fortunately, international law has kept pace, to a certain extent, with these developments and there are well-established remedies available where a child has been abducted. Sometimes those remedies work well; sometimes not.
Who is entitled to the protection of the law?
In the case of international child abduction there are at least two, often three and sometimes four legal systems involved.
Sometimes a child is taken away to a foreign country even when both parents are of the same nationality and were resident in the same place. This is done in the somewhat desperate, and usually ill-founded, hope that distance will make it more difficult for the other parent to get the child back.
In this case, there will only be two legal systems involved: the law of the parents’ country and the law of the country to which the child has been taken.
In other cases, a child might be taken where the parents (and the child) are all of different nationalities. In this case, the legal systems governing each of the parents and the child will be relevant and if (which is relatively rare) the child has been taken to a country which is not any of these countries, the legal system of that country will also come into play.
You can imagine that these different legal systems could well take a very different view of what is in the best interests of the child and which parent should have the right to have the child live with them.
This is where international law steps in.
In 1980, after years of debate and thousands of heart-breaking cases of abduction, an international convention was adopted to regulate how these cases should be dealt with around the world.
This is the ‘Hague Convention on the Civil Aspects of International Child Abduction’. It has been adopted by 93 states, so only roughly half of the countries in the world. Turkey has adopted the convention.
It’s important to understand that the convention does not change any of the legal rights of the parents or of the child. It only decides which country should decide the outcome of any dispute and provides for the return of the child to that country.
The convention requires the courts in all the countries that have signed up to it – including, of course, Turkey – to return the child to the country which is allocated jurisdiction under the terms of the convention.
Where a child was ‘habitually resident’ in a country that is a signatory to the convention immediately before a ‘wrongful action’, the courts must order the child to be returned to that country. It also requires them to do so quickly, with a decision being made within six weeks.
Needless to say, that does not always happen in practice and the situation in Turkey is less than satisfactory.
‘Habitually resident’ has its common sense meaning. It means that the child was normally resident in that country. If a child spends 40 or 50 weeks per year in a country and only goes away on holiday they will be considered to be habitually resident in that country. The test will be applied by looking at a period of several years but if, for example, the child spent the first ten years of their life in Spain and then the family moved to, say, Germany then – after a relatively short period – the child would be considered to be habitually resident in Germany. Evidence of the permanent move to Germany would include having a long-term home there, being registered in school etc.
A ‘wrongful action’ is defined by the convention. Being a legal definition it is lengthy but, basically, the removal or retention of a child is ‘wrongful’ when it is in breach of the rights of custody that a person has under the law of the State in which the child was habitually resident immediately before the abduction.
Note that the law covers both removal and retention. In other words, if one parent allows the child of which they have custody to travel to another country in order to see the other parent and that parent refuses to return the child (retains it), the rules in the convention will still apply.
The rest of this guide assumes that the child was resident in one of the countries that has signed up to The Hague Convention immediately before the abduction. Click here for a list of those countries.
It is important to understand that, with very few exceptions, if a child is taken unlawfully then they must be returned to their home country and the authorities in the place where the child is physically present must act swiftly to arrange this.
What should you do if you’re worried about child abduction?
Many parents fear that the other parent will do something rash and abduct their child or, more often, refuse to return the child at the end of an agreed period of visitation. Fortunately, these fears are often ill-founded and derived from a combination of the natural desire to protect the child and excessive caution. However, they are natural.
However, if you fear that the other parent might take the child there are some precautionary steps that you can take. These include:
- Having high-quality, up-to-date photographs of the child readily available
- Taking copies of the child’s passport. Better still, take a certified copy. How you obtain a certified copy will depend upon where you live but, in most countries, it involves having the copy marked as a true copy by a notary, consulate or lawyer
- Having a copy of any court documents or agreements relating to your separation or divorce
- Having a copy of any custody order (the order saying who the child should live with) and any documents relating to visitation (access) rights
- Keeping the lines of communication with the other parent open. Discuss your fears with the other parent
- If you think there is an imminent danger of abduction, notifying the police
Other steps that can be taken some time in advance of any trouble are to make sure that, in any court order relating to the custody of the child, you expressly acknowledge that the Hague Convention should apply and agree the arrangements for visits.
You might also consider an order that places the child’s travel documents in safe custody when they are not legitimately needed for travel.
If you have a court order of any kind, you will need to have several copies of it, preferably certified.
If you are worried about the child being taken to a particular country, it is worth getting all the documents officially translated into the language of that country. This can be quite expensive and it can usually be done quickly if a problem arises, so it might be better left until then. However, translating them in advance can save several days if a problem arises.
You also need to have as much information as you can about the child. This might include:
- Full name (with alternative spellings) and any nicknames
- Date and place of birth
- Height (specifying the date upon which the measurement was taken)
- Weight (again specifying the date)
- Colour of eyes
- Colour of hair. Keep a few strands for DNA analysis if the need arises
- Identifying features (scars, glasses, braces etc.)
- Any relevant medical information (for example, if the child is diabetic)
You also need to have information about the other parent. This might include:
- Full name (with alternative spellings) and any nicknames
- Date and place of birth
- Nationality and place of residence
- Full details of their passport or other travel documents. If the parent has more than one passport, make sure you have details of all of them. The details will include passport number, date and place of issue and expiry date. Ideally, you should have a copy of each of the passports
- Current address and contact details
- Names, addresses and contact details of relatives, especially those whom they would be likely to visit
- Details of your marriage or relationship including the date of marriage or the commencement of the relationship
- Date and place of separation or divorce and copies of the court documents involved
- Current marital status
- Height, weight and colour of eyes
- Colour of hair: again, a few strands for DNA testing would not be a bad idea
- A recent photograph, with the date on which it was taken
- Identifying features
If you are worried about abduction, it is probably a good idea to download both a copy of the relevant law in your own country and The Hague Convention – and, of course, to read them!
If you are worried about the child being taken to a particular country, you might also want to download the relevant law in that country, if it available online.
Of all these things, the most important as a way of preventing abduction is to keep the lines of communication open. If you discuss your worries you may be reassured or you may have cause to worry further – in which case, further action can be taken before the event happens.
It is not uncommon for the other parent to threaten to abduct the child, sometimes as part of a strange and dangerous game. It is wise to take such threats seriously but also to realise that they might not signify a serious and immediate risk of an abduction occurring. If threats are made you should contact a specialist lawyer in your own country or the child protection services in your country. They can then advise you as to the steps open to you. These might involve going to court and would almost certainly involve warning your child’s school and other relevant people that there might be a risk of abduction.
In almost all countries, if there is a problem or potential problem over child abduction, you should be able to get an appointment before a judge very quickly: a matter of hours or days, not weeks.
What should you do if your child has been abducted?
The first thing to say is that you should try not to panic. You will, of course, do so. However, fortunately, most children who are abducted are recovered quite quickly.
The first thing to do is to seek help. How you should do that will depend where you live.
In most countries, there are associations or self-help groups for people whose children have been taken away without their consent. Contact them but do not depend exclusively upon them. Self-help groups are a useful source of information but you will probably need to go to other people in order to recover your child. The group will probably be able to recommend people near to you who have experience in this field.
If you fear that your child has been abducted, or fear that this is about to happen, a good first point of contact is the police. In many countries they will act immediately: in some they will simply refer you to the “Designated Central Authority”, often just called the “Central Authority”. Here, for brevity, we will call them the “DCA”.
The reason for contacting the police is that they may be able to issue an immediate arrest warrant and so prevent the removal of the child from the country.
If you have already been engaged in court proceedings, you might want to go back before the civil court for an order prohibiting the removal of the child from the country – even if this might be too late.
You may want to contact the police or civil courts via a lawyer, who will probably be able to get to the heart of the problem more quickly than you would on your own.
If you think that the child has already been removed from your country or retained in another country, your first contact should be with the DCA in your country. This is whether or not removal to a Hague Convention country is involved.
The process and terminology can seem complex, but it is worth wading through it.
Under the Hague convention, a parent who has ‘lost’ a child (called a “left behind parent”) must generally submit an application for return to the DCA in the country where the child was usually living before the removal or retention.
This country is called the “requesting state”.
Each country that is participating in the Convention has a DCA. This network of DCAs transmits and receives applications on behalf of the left behind parents. They assist the left behind parents in bringing their application to the attention of the competent authorities (usually a court) in the “requested state”. i.e. the country to which the child has been removed or where it is being retained.
For example, the United States’ DCA is the US Department of State Bureau of Consular Affairs Office of Children’s Issues. In the UK, it is (for England and Wales) the Foreign Process Section of the High Court in London. In France, it is the Ministry of Justice in Paris. The point of mentioning this is that the nature of the designated authority varies quite a lot from country to country.
A full list of Central Authorities can be found here.
However, the main point is that the DCA you should contact is the authority in the country where you are living, even if you know or suspect that the child has already been taken abroad.
If the child has been taken from Turkey, the DCA in Turkey is the Ministry of Justice:
Ministry of Justice
General Directorate of International Law and Foreign Relations
Adalet Bakanlığı Ek Binası Namık Kemal Mah. Milli Müdafaa Caddesi No:22
Kızılay – Çankaya
The designated authorities are used to dealing with these applications and will usually have guidance leaflets and other materials available to assist you.
Taking action in these cases needs to be done quickly and it needs to be done correctly the first-time round. For these reasons it is usually a good idea to involve a specialist advisor – usually a specialist lawyer – to assist with your application and guide you generally at a very stressful time.
The law here is complicated and you will be dealing with multiple jurisdictions; often where there are language issues.