International Child Abduction:
Procedure for the Dutch court
International child abduction means that one of the parents has illegally brought the child to another country, or is keeping the child in a country, with the intention to keep the child there to live in that country.
Illegally means: not in accordance with the rights of custody under the law of the state in which the child had habitual residence immediately before the removal or retention. and without permission of the other parent who has custody.
The most important question to be answered is whether or not the country involved has gratified the The Hague Convention on the Civil Aspects of International Child Abduction. In that case a procedure can be started in the country where the child is kept illegally, to ask the court to decide that the child must be brought back to the country where it had habitual residence before the abduction. In principle the court will decide so, unless a year has already passed when you start the procedure.
The parent who wants the court to decide that the child can stay, will have to convince the court that either:
- there is no abduction,
- the other parent agreed,
- bringing the child back to the country where the child had habitual residence before the abduction will cause danger to his or hers physical or mental situation or cause the child to be brought into an otherwise considered unbearable situation,
- the child is resisting his of hers return to the country where it had habitual residence (the child has to be considered old enough to form his opinion on the matter),
- or that the return to the previous country would be a breach of human rights.
In The Netherlands the procedure is as follows:
- you can ask the Dutch Ministery of Safety and Justice to contact the authority of the other country about the abduction. This is not a necessary step to take. You can also choose to start a court procedure immediately.
- you start the procedure with the Dutch Courtwithin two weeks the first hearing in court will take place. The court wants to:
- hear the arguments on both sides;
- see if the parties are willing to make arrangements for visitations for the next few weeks and
- see if parties want to participate in ‘Cross Boarder Mediation’.
- The aim of Cross Boarder Mediation is to see if parties can make a decision together about where the children shall live. If parties can not agree on that , the aim can be to see if the parties can agree on visitation arrangements for the two possible outcomes of the court procedure: both for the situation in which the child stays in The Netherlands and for the situation in which the child will be brought back to the country where it had habitual residence before the abduction. Making this arrangement, can save time, money and effort later on. If Cross Boarder Mediation is not possible or not successful, more procedures might be necessary, later on in the country were the children stay after the decision of the Dutch court. Before the Cross Boarder Mediation starts a child-therapist will talk to the children to see how they feel about the situation. This information will be shared with the parties during the Cross Boarder Mediation. Cross Boarder Mediation will take place in the first weekend after the hearing in court. Both parties talk to a team of two mediators. Off course we will be stand by to give you advice. If there is no agreement on the return of the children, we will advice on the possible visitation arrangements. We don’t want you to agree on insufficient visitation arrangements, just because of the emotions during that weekend or because of possible pressure by the other party or the mediators. When the mediators think there is an agreement, they will send it to the lawyers, so they can consult (again) with their clients.
- After two weeks the second hearing in court will take place. Of course another hearing in court will not be necessary if parties have reached an agreement. If parties have not reached an agreement on the return, it is possible that they did reach an agreement on the visitation regulation afther the decission in the abduction case. In that case the court does not know the outcome of the mediation. Parties can agree that the court can find out about the outcome of the mediation, but only after the court had decided whether the children can stay in the Netherlands or not. The court can only decide whether or not the children must be returned. The court can not make a decision on the visitation regulation. That is up to the country where the children wil recide afther the decision in the abduction case.
- Shortly after the hearing in court, the court will give its written decision. If the court decides that the child must be brought back, it will also decide on the date on which the parent is obliged to bring the children to the other country or the other parent. Due to special occasions (school exams, medical treatment) this could be a moment in the near future. The court usually takes into account the period in which parties can appeal (two weeks) and sets the date to return the children after this period has ended. If however one of the parties appeals, the children can be kept in The Netherlands until the Court of Appeal has made its decision, which will take another month.
Our lawyers are experienced in international aduction cases and feel strongly involved where it concerns the interest of the children in these important procedures. Please contact us to discuss the possibilities. We trust you to give us all the relevant information we might need in the procedure. It is a fast procedure. There is no time to keep information from your own lawyer until the ‘right moment’. Let us help you to decide which information you wish to share with the court during this procedure.