Frequently Asked Questions
International Child Abduction
Yes, age matters. Article 4 of the convention states that the convention ceases to apply as soon as the child reaches the age of 16. That means that a trial started when the child was almost 16 years old is of no use when the child reaches the age of 16 before there is a court decision.
The age of the child can matter in other ways as well.
Child interview
For example, in an international child abduction case, the Dutch court will invite the child to a child interview when the child is six years or older. If the child is under 6, the parents can request the court to hear the child.
Art. 13 part 1 b of the convention
Article 13 (1) (b) of the Convention states that the return of a kidnapped child can be refused by the court if there is a serious risk that the child will be exposed to a physical or mental danger when he returns to the country of his habitual residence, or is brought into an unbearable condition in any other way.
The young age of a child may be important in this regard. The young age of a child may be important in this regard, but it is not decisive in itself. In addition to the young age, there will have to be additional circumstances. This is also the case when a very young child will be separated from the kidnapping parent after returning to the country of origin because they will not return. The young age in itself is not enough to conclude that the child will be in an unbearable condition upon return.
First of all, what you need to keep in mind is that the parent who states that there was consent to relocate the child, has to proof that there was indeed consent.
But if you wish to proof that there was no consent, you can use everything that seems relevant to proof this. It could be old e-mails or what’s app messages, that show that you did not consent. Or that the move would be temporary. Besides that you could use pictures, contracts, plain tickets or insurence papers. You can also use statements from relatives or others who where aware of the plans. Or statements from employers or schoolmanagement.
In conclusion: you can use just about anything that shows what were the plans for the future.
In the Netherlands it is a criminal act to keep a child from the person(s) who has custody over the child. It is called ‘withdrawal from authority’. This criminal act is described in article 279 of the Dutch Criminal Law.
The Dutch prosecutor’s office has written a guideline about what kind of punishment it will demand in criminal cases about withdrawal from authority. You can read this guideline on the website of the government. The fourth category of cases refers to international child abduction.
In 2019 the Dutch Appeal Court in The Hague has imposed a sentence to a father for international child abduction. He was sentenced to imprisonment for a period of 42 months. He had taken the children from the mother when they were 3 and 8 years old. After that he had taken them to other locations and had changed their names. As a result the mother did not know where the children were for a period of 11 years. You can read this decision on the website of the Dutch courts.
In the Netherlands it is a criminal act to keep a child from the person(s) who has custody over the child. It is called ‘withdrawal from authority’. This criminal act is described in article 279 of the Dutch Criminal Law.
The Dutch prosecutor’s office has written a guideline about what kind of punishment it will demand in criminal cases about withdrawal from authority. You can read this guideline on the website of the government. The fourth category of cases refers to international child abduction.
In 2019 the Dutch Appeal Court in The Hague has imposed a sentence to a father for international child abduction. He was sentenced to imprisonment for a period of 42 months. He had taken the children from the mother when they were 3 and 8 years old. After that he had taken them to other locations and had changed their names. As a result the mother did not know where the children were for a period of 11 years. You can read this decision on the website of the Dutch courts.
The Convention does not give a definition of ‘habitual residence’. But it is evident that member states need to use a unambiguous interpretation of the Convention.
The court decisions of the European Court of Justice gives several criteria to determin the childs habitual residence.
A child’s habitual residence corresponds to where, in fact, is the center of his life. It concerns the place that expresses a certain integration of the child in a social and family environment. It is about the place that expresses a certain integration of the child in a social and family environment. It is about the place that expresses a certain integration of the child in a social and family environment and the relocation of the family to that state, the nationality of the child, the place and circumstances under which the child attends school, the child’s language skills and family and social ties in that state.
There are two different ways in which a parent can abduct the child.
The first is by taking the child to another state without the consent of the other parent. This is only the case if the other parent has (joint) custody over the child.
The other is by not returning the child to the home state, without the consent of the other parent. Again, the other parent must have (joint) custody, to make this a case of international child abduction. This kind of abduction can happen for instance after spending a holiday in another country.
If you have a Dutch court decision that says you have a visitation arrangement with your child, the police can help you to get access to your child. The police can be reluctant. If there is for instance a child protection decision that the Child Protection Service has (part of) the custody, they might refuse to enforce the decision.
You can consider making a report of a criminal offence by the other parent. In the Netherlands emotional abuse (coercive control) is not a criminal act. (In the United Kingdom, Wale, Schotland, Ireland, Australia, New Sealand and the United States it is a criminal act.)
You can report:
– Keeping the child from your custody / withholding you access to your child
– Keeping the child from school without reason
– Defamation or slander
Reporting the criminal offence can lead to new information, through the assistance of the police. You can also ask for a copy of all police registrations involving your child. And off course the Dutch prosecutor will make a request for international legal aid when necessary.
U can see which countries have signed The Convention and the date on which they did on the website of the HCCH :
https://www.hcch.net/en/instruments/conventions/status-table/?cid=24
The HCCH made a spreadsheet showing acceptances of accessions to the Child Abduction Convention:
https://assets.hcch.net/docs/d796ab1c-7137-4376-8564-3dcd7d078e49.pdf
The Convention is by definition in force between all the States that have ratified the Convention.
If a State has become a member through the accession procedure of art. 38 of the Convention, but has not ratified the Convention, you must check if the other State has accepted the accession of the other state. If one State has acceded before the other State, the first State must accept the accession of the second State.
If the home country of the child is not a member, but the country where the child is currently staying is a member, you can still use the Convention and ask for a return decision in the country where the child is staying.
The U.S. State Department keeps track of countries that enforce the Convention and maintains a similar website: https://travel.state.gov/content/childabduction/english/country/hague-partycountries.html
So you will have to check the date of accession, date of ratification and possible acceptance of the accession to find out if there is a treaty basis between the two countries.
