1. Background on Child Abduction Cases Under the Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is an international treaty in which the signatory countries agree to cooperate in returning children to their home country, after the children have been abducted by one parent and taken to a foreign country.[1]  The goals of the Hague Convention are as follows: (1) to secure the immediate return of a child wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States.  Hague Convention, Art. 1[2]  The United States is a signatory to the Hague Convention [3] along with eighty-seven other countries.[4] 

To begin the process of seeking return of a child pursuant to the Hague Convention, the left-behind parent must first contact the designated Central Authority within his or her home country.  The Central Authority will work with the left-behind parent to complete an Application and other supporting materials.  The Central Authority sends these documents to the U.S. State Department’s Office of Children’s Issues (“State Department”), which is the designated Central Authority in the United States.  The State Department then initiates the process of locating the child in the United States.  Once the State Department locates the child, and if the left-behind parent requests pro bono legal representation, the State Department will locate attorneys within its attorney referral program, who may be interested in representing the left-behind parent.  Once an attorney expresses an interest in a particular case, the prospective client can choose to contact that attorney.  The attorney then has the opportunity to evaluate the case and determine whether to take on the representation.           

An attorney who has agreed to represent a left-behind parent (“petitioner”), will file a petition for the child’s return in either state or federal district court in the district in which the abducting parent (“respondent”) resides. [5]  A petitioner establishes a prima facie case for the return of a child under the Hague Convention if he or she proves three elements: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign country; (2) the removal or retention was in breach of custody rights under the foreign country’s law; and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful retention.  Hague Convention, Arts. 3-4. 

If the petitioner establishes a prima facie case, then the abducted child must be returned to his or her country of habitual residence unless the respondent can satisfy the requirements of one of the five affirmative defenses.  Those defenses are as follows: (1) the child has become well-settled in the new surroundings;[6] (2) petitioner consented or acquiesced in the removal or retention; (3) there is grave risk of danger to the child in the home country; (4) the child is a mature child who objects to removal; and (5) returning the child would violate public policy.  Hague Convention, Arts. 12, 13, and 20.  However, even if the respondent successfully demonstrates an affirmative defense, the Court may nonetheless order return of the child if doing so would further the Hague Convention’s goals. 

  1. How to Begin Your Pro Bono Hague Convention Practice

You do not have to be a family lawyer to develop a pro bono Hague Convention practice.  As stated above, many Hague Convention petitions are filed in federal district court, where most family lawyers do not practice regularly.  Attorneys interested in pro bono representation of petitioners in Hague Convention cases should register to be part of the attorney referral program on The State Department’s International Parental Child Abduction website.[7] The State Department provides many helpful resources, including a manual entitled, “Litigating International Child Abduction Cases Under the Hague Convention,” which contains analysis on relevant case law, guidance on procedural issues and handling the logistics associated with a Hague Convention case, as well as sample pleadings and filings.

This article originally was published in the October 2015 issue of The Middle Ground, a publication of the Federal Bar Association’s Middle District of North Carolina Chapter.