ADR Methods in Hague Convention on the Civil Aspects of International Child Abduction (25.10. 1980).

(Text of the Conference held by the Author at the Greek Catholic University of Presov Oct. 22, 2015) 

A Practical Overview

Since I began to deal with “lost” children of the Hague Convention, many times I have come across issues that I had hardly heard of before as a local Italian Family Lawyer. A “Hague” case is different from a normal custody case and needs an additional dose of prudence.

The Hague Convention was created in 1980 to provide a quick return of “abducted” children to the parent that was left behind, (abducted is an elegant Latin word for “kidnapped”). The abductor, (kidnapper) parent is reached quickly by a Court Order (within 6 weeks), and forced to return the children to the place of their habitual residence. This is normally where they were born or raised and is often also from where the kidnapper parent originally kidnapped the child and where the other parent is left behind. A complication may arise as this mechanism of the Court Order, may “hook” a parent to a foreign Country for many years.

The Convention, in short, arose from uncertainty and conflict between laws of two countries. For many years, child abduction was predominantly done by fathers who kidnapped their children to remote regions of the world where they could not be caught and forced to return the child, primarily because the local legal system was not clear on the matter of parental kidnapping. Additionally, some national regulations endow fathers with superior power over their children. For example, Sharia Laws do not allow the return of children from their fathers to their mothers because fathers are responsible for their upbringing. In fact, as of today, only a handful of Muslim Countries have joined the Hague Convention.

When a partner is considering to run away with the child this is certainly a great concern, but the Hague Convention makes the return of the child remarkable more possible. If the partner’s destination is a Country that has not yet adopted the Convention, troubles are increased to say the very least. However, diplomacy  successfully resolves matters in non-Hague Countries as well.

 Though citizens from remote Countries were the predominant perpetrators of international parental kidnapping currently a major percentage of international parental kidnapping occurs in Europe by Westerners (EU, North, Central and South American nationals against each other). Parents from international couples will often times take a child with them to return to a home country when the relationship does not work out. Costly, time-consuming complications can arise, especially when visible boundaries are unclear (eg Tirol regions of Italy and Austria). To reunite abducted children and create an enforceable custody agreement one must call on the Hague (with all of its resources), Central Authorities, a minimum of 4 lawyers (2 in each country), and 2 Courts.

Two Practical Examples

Last summer my Office was representing some Clients in two different Hague proceedings for child abduction. I acted for the defendant in the first case (Court of Catania) and for the plaintiff in the other (in Rome).

The parents were Americans in each case  and both the Italian and American Central Authorities had been alerted for these “legal kidnappings”.

When acting for the defendant (article 21: visitation rights) the lawsuit had been started from the mother in July 2014 through the Central U.S. Authority for Child Abductions- and it had landed at the Tribunale per I Minorenni of Catania only in May 2015, many months later (to be then brought to an end by the Court within the regular 6 weeks’ deadline established by the Law). The investigation of the Italian Police and Carabinieri took many months, in fact.

The second proceedings (return order) had been activated on August 17th 2015 privately -so to speak-, as I started the procedure of art. 29 Convention of the Hague the same day that my U.S. Client had called me, so that the return order of the children was issued by the Court on September 18th 2015.

As anyone can see the total duration was that of 13 months -for the State funded case- vs 31 days for the privately funded one. We are talking of abducted children, not of the return of a package delivered to the wrong address.

In many Hague cases the life of very young children is involved: the small ones in my cases were 3 and 4 years’ age  and the oldest was 9. It is evident that the damage done to the psychological stability of these human beings is huge: for every month lost before the judicial decision is taken, a stronger psychological shock is inflicted to the child who is going to be “deported” back to his/her habitual residence.

However, the Central Authorities of the Hague Convention cannot humanly do better than they do: the dedication of the staff involved, mainly composed by Magistrates and Police forces, knows no limits: but the bureaucracy does.

Think for instance of Summer breaks, of Christmas breaks etc. Or, simply, think of a fax that reaches the social worker’s desk when s/he’s on vacation and may come to know of the abduction only 15 days later;  think of the automatic reply “I am currently out of office please leave a message….”. The Child Abduction is an extremely urgent matter and should be dealt with in the shortest time possible, as if there were no tomorrow. 

When we received the call of our Client from the US in August the Client wanted to act without delay to take his children home so he acted “privately”.  31 days later the children were at school in the USA.

There comes the question: how much does the public proceedings cost when compared to the private one?

Basically a Hague proceedings for child abduction, when run directly by the Central Authority costs nothing, while  for a private one you may as well pay several thousands, even tens of thousands, depending on which Law Firm you choose.

Being a very specialized field, though, the minimum fees required can put under pressure the finances of a normal parent. Not to mention the fatigue and stress needed to find a lawyer in another Country who can understand your language, the travels necessary to appear before a Court, yet in another Country, flights tickets, hotels and so on.

 What is the solution then? The solution is certainly to be found in mediation: see the European Parliament’s office

  https://www.europarl.europa.eu/atyourservice/en/20150201PVL00040/Child-abduction-

 In particular I think that the most efficient way to deal with this type of cross border litigation remains Collaborative Law, where two lawyers are involved: one for each party.

However not always mediation or collaborative methods can be used in these contentious practice: basically because a crime has been committed (abduction) and not always the abductor/abdutrix is willing to change his/her mind and return the children spontaneously.

Only the intervention of the Courts can solve the matter, many times.

Cross Border Mediation or Collaborative Law Which One is the Best One?

“Mediation is a form of alternative dispute resolution that aims to determinate the positive management of conflicts. Its goal is to induce the parties to find a solution mutually acceptable and satisfactory through the assistance of one third: the mediator.

For the cases of international child abduction, scope of the mediation is achieving a negotiated agreement in the exclusive interest of the minor. The main responsibility of the European Parliament Mediator for International Parental Child Abduction is to assist the parents in finding the best solution for the well-being of their child.

In order to save children and parents the emotional and psychological strain arising from legal proceedings, the EP Mediator provides information and advises on the alternative way to settle the dispute, namely mediation”. From the EP Mediator’s Office Website.

A great advantage of this type of Mediation is in in the fact that it is totally free. However, not always mediation is made possible by the circumstances. It is good to remember in fact that:

1. A CRIME HAS BEEN COMMITTED. As sad as it may be, in an Hague convention case a crime has been committed (child abduction) therefore legality must be restored, as a first thing. The child must be sent back to the Country of his/her habitual residence, whose Courts will decide about his/her best interest.
2. NO MEDIATION IS POSSIBLE UNTIL THE EFFECTS OF THE ILLEGAL CONDUCT ARE STILL PRESENT. Albeit family mediation has been introduced in Europe through the R. CE 98/01 expressly for Cross Border cases (and although this is certainly the most effective way to deal with child abduction) no mediation is possible in the presence of a crime (unless both agree to drop the accusation).
3. THE ABDUCTING PARENT SHOULD BETTER SEEK A RELOCATION ORDER. One cannot take justice into his own hands. There is a legal way to move to another Country: seek a permit from the judge of the habitual residence, then move.

These three conditions can make mediation impossible or rather hard to pursue.

On the other hand, Collaborative Practice offers the advantage that both parties are represented, so that the consequences of the crime committed may be avoided, often times, by favouring a quick amicable solution.

The disadvantage is that two (international) lawyers who can speak the same language must be found: one in the Country of habitual residence and the other one where the abducting parent is now residing.

Another disadvantage is that Collaborative Practice actually doubles the costs of the procedure. Thus, only some couples can afford it.

Presented by Marco Calabrese, Attorney and the founder of Family Law Italy www.familylawitaly.com, a boutique international law firm in Rome, Marco is a Seminar Leader on the Hague Convention at the University of Roma3, Department of Political Sciences (Chair of International Private Law, Prof Raffaele Torino).For More information contact  [email protected]