Child Abduction from France and to France

Child abduction from and to France and the Hague Convention

The Hague Convention of October 25, 1980, on the Civil Aspects of International Child Abduction (the Hague Convention) is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.

The countries that are party to the Hague Convention have agreed that a child who is an “habitually resident” in one party country, and who has been “removed to or retained” in another party country in violation of the “left-behind parent’s” custodial rights, shall be promptly returned to the country of habitual residence, unless certain criteria are met.

The Hague Convention as been ratified by both the United States and France with only minor United States reservations and minor French reservations.

The Central Role of the French Bureau d’Entraide Civile

If a child is wrongfully removed from France by one parent, the left-behind parent in France and his/her French attorney will need to work through the “Bureau d’Entraide Civile et Commerciale Internationale” of the French Ministry of Justice in order to seek under the Hague Convention the child’s return to France.

In order for the Bureau d’Entraide Civile to be of meaningful assistance, a number of documents must be obtained and submitted to the Bureau d’Entraide Civile. For list in French of such documents see:

http://www.justice.gouv.fr/justice-civile-11861/enlevement-parental-12063/en-pratique-21112.html#1

French-American Couples and the Hague Convention

In terms of French-American couples, in our experience, there are three scenarios involving contemplated removal or the removal of a child by one spouse to a different country without the consent of the other spouse.

In French-American couples, it is generally the wife who contemplates or has already effected the removal. To keep the following comments as brief as possible, only the scenarios involving wrongful removal or retention of a child by the wife is discussed. (Naturally, wrongful removal or retention of a child by the husband may also occur but most such instances involve a husband from the Middle East who returns to a country in that part of the world.)

As a practical matter, term “wrongful removal or retention” means removal of the child for his or her country of “habitual residence”, unless prior to such removal the left-behind parent so consents in writing or there is a judicial order authorizing the removal and due process had been had been afforded to the left-behind parent.

Scenario No. 1A. The American wife resides in France with her French husband and minor child(ren). The wife is not fluent in French and has no or very limited skills to obtain employment in France. The marriage has broken down and the wife wants to return to the United States with the minor child.

Scenario No. 1B. The French wife resides in the United States with her American or English speaking husband and minor child(ren). The wife may not be fluent in English and has no or very limited skills to obtain employment in United States. The marriage has broken down and the wife wants to return to the France with the minor child.

Scenario No. 2A. Same facts as Scenario No. 1A, except that wife has return to the United States with the minor child and less than one year has elapsed from the date of the wrongful removal or retention. The husband has or intends to seek the child’s return to France by application of the Hague Convention.

Scenario No. 2B. Same facts as Scenario No. 1B, except that wife has return to the France with the minor child and less than one year has elapsed from the date of the wrongful removal or retention. The husband has or intends to seek the child’s return to the United States by application of the Hague Convention.

Scenario No. 3A. Same facts as Scenario No. 2A, except more than one year has elapsed from the date of the wrongful removal or retention.

Scenario No. 3B. Same facts as Scenario No. 2B, except more than one year has elapsed from the date of the wrongful removal or retention.

Comments on Scenarios No. 1A and 1B

The Hague Convention was adopted (ratified) by a number of countries to thwart such preemptive action by a spouse. Under normal circumstances, if the husband brings a timely action to have the children returned, the return of the child will be ordered unless the wife proves  that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. (See Article 13b of the Hague Convention.)

If the wife believes that she can make such a showing, it is usually best for her to seek a court order from a court where the child is an “habitually resident”, which court order would giving her custody of the child and authorizing her to reside in another country. As an alternative, if the husband is prepared to authorize in writing the removal, that is a possible alternative. However, any such writing should be prepared with the assistance of legal counsel.

Comments on Scenarios No. 2A and 2B

Courts in both France and the United States generally play by the rules and protect the rights of the left-behind parent. Thus, unless the wife can prove in the child’s new country of residence that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”, return of the child will be ordered but only after the wife has incurred substantial legal expenses. Once such order has been issued and the child is returned to the country of his or her habitual residence, the local court can determine the issues of custody and the place where the child is to reside.

It should be noted that for certain children the “grave risk” test is not the only criteria that may be considered by the court in the country where the child has been removed. If the court determines that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account Court may consider the child’s views and decide not to order the return. (See Article 13 of the Hague Convention.)

Comments on Scenarios No. 3A and 3B

Courts in both France and the United States have a substantially lesser obligation to protect the rights of the left-behind parent, if more that one year has elapsed.  In that event, if is sufficient for the spouse having removed the child to demonstrated that the child is now settled in its new environment.” (See Article 13 of the Hague Convention.)

Thus, left-behind parent should be make every effort to bring an action under the Hague Convention before the expiration of the first year.

Author: Jonathon Wise Polier
Avocat aux Barreaux de Paris et de New York
Attorney-at-Law (Paris & New York)