Extract of Jytte Thorbek's book: "Strejftog på Juraens Slagmark". In English: "Incursions into the Battlefield of Law" published by Aschehoug, Copenhagen, April, 2002. Jytte Thorbek is Doctor of Laws jur. dr. and practising lawyer. Made Available on the Internet with permission from the Publisher. - Copyright.

 

 

The Hague Convention

 

 

People meet, and sweet music sounds. This is an old saying, and it is still valid. In a world with The modern world's travelling pattern does, that it often is people often meet from very different countries and cultures. who meet. Nowadays, tThere is hardly any family, nowadays,, that cannot tell about international relationships and marriages. This is great, until they break up/as long as they last. However, Tthe music often changes character, if the relation­ships break up.

The problems become especially complicated in mixed marriages with children. When there, in such cases, has to be made decisions regarding custody and visitation rights of access have to be made in such cases, it can cause many problems, because the countries' legislation in this area is differsent from one country to another.

Special types of problems arise, if one of the parents leaves the country of current domicile, without having thethe necessary formalities being in order – or omits to return after a vacation holiday overseas. is over. Then the parent who is left behind parent is entitled, under a series of conditionsprimacies, to object and have the child or children returned.

Therefore, a number of countries, in October of 1980,  signed the so-called Hague Convention on Interna­tional Child Abduction in October of 1980. THereinhe, the measures that can be applied, are extensivelynarrowly  described in the Convention. The Danish Parliament ratified the Cconvention by law of November 27th 1990, and the law took effectwas implemented  on July 1st 1991.

Since it is my intention with this chapter about the Hague Convention to make the following case, "Holiday in Denmark turned into a Nightmare", in whichwhere a man in the USA claimed, that his former spouse, illegally had brought their child to Denmark, easy to com­prehend, I shallwill in the following concentrate on the parts of the Cconvention, that are relevant for this particular case.

 

 

The purpose of the conventionConvention

 

The official title of the Hague Convention is ”Convention on the Civil Aspects of Interna­tional Child Abduction”. The objects of the Convention are defined in Article 1:

 

a)      to ensure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b)      to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

 

In short, the purpose of the conventionConvention is to protect children against being illegally removed from their usual environment and to secure that they immediately, after an illegal abduction or reten­tion, they are immediatelyare returned to the country, where they have permanent domicile.

A number of countries signed the Hague Convention on October 25th 1980. Since then, 47 countries have ratified and implemented it as part of their legislation. It is countries in Europe, North and South America, East Asia, certain countries in Africa plus Australia and New Zealand. With certain reservations, tThese countries have, with certain reservations,  an obligation to return the illegally abducted or illegally retained children.

In this context, it is important to note that a number of countries have - up till to now - not signed the Hague Convention. This applies to countries like China, India, Pakistan, the Middle Eastern countries, Russia and the countries that previously were part of the Soviet Union. It is in practice almost impossible to get illegally abducted children returned from these countries, unless kidnapping methods are used.

 

The Hague Convention might be a useful tool in, for example,  the following cases, e.g.:

 

·        In a divorce situation, where a parent returns to his/her nativehome country before the custody issue is finally settled.

·        The issue of custody is settled as joint custody. But one of the parents, the domiciliary parent or the visitation right parent, wishes to take up permanent residence in his/her nativehome country, or in another country, and brings the child to this country without permission.

·        A parent who has neither custody nor visitation rights, takes the child to his/her home country to place it with his/her family.

·        After a legal vacation, for example in his/her home country, a parent does not return to the parties’ joint country and without consent from the other parent takes up permanent residence in the nativehome country.

 

In practice, the enforcement of the Hague Convention depends to a high degree on the financial aid afforded by the signatory countries in the current particular cases.

The USA, foras an example, excempted itself from case costs in processing a case under the Hague Convention. That means that an American parent, who claims that a child is illegally brought to Denmark, is in a better situation than a Danish parent, who claims that a child is illegally abducted to the USA. The American parent will have a lawyer appointed for him/her, while a Danish parent will not get assistance from an appointed lawyer in the USA. As is well known, the cost of a lawyer in the USA is very high and thisat may, in practice, prevent a Danish parent from initiating a case under the Hague Convention.

The attitude of the Danish authorities is, in the latter instance, that they will not providesupply financial support to the Danish parent in such cases. They only encourage the parent in question to apply for financial assistance elsewhere.

 

The role of the Central Authority

One problem, therefore, is the excemptions that a country may make fromtake to the Con­vention. Another problem is the manner in which the Convention cases are handled by each countryeach individual country handles the Con­vention cases.

Countries that have ratified the Hague Convention have appointed a so-called Central Authority. This Authority receivesshall acceptreceive and forwards possible cases to the Central Authorities in other countries that have ratified the Convention.

Denmark has appointed the Department of Justice as Central Authority, and it has delegated the task to the Department of Private Law. In the USA, it is an office underin the Depart­ment of State???/Foreign Affairs that has been designated as is appointed to be Central Authority. An American parent can turn to this office, if he/she believes that a child has been illegally abducted or is illegally retained in another country.

If an abduction of a child is suspected, the parent or the parent's lawyer then has to file an application with all the necessary information plus a certified copy of all relevant court decisions to the Central Authority in the injured party's nativehome country. Hereafter, that This country then forwards the case to the other country's Central Authority, in Denmark to the Department of Private Law.

The Department of Private Law must then, according to the regulations, forward the case to the Bailiff's Court in the area, where the child is believed to staybe located. In the end it is, thuserefore for, the local Bailiff's Court, that has to decide whether it is actually an illegal abduction of a child. The decision must be evaluated according to legislation in the country, where the child has had permanent residence until then.

All this is seems fairwell and logical, but when different authorities are involved, it is impor­tant to clarify the responsibilities of the respective authorities. Is the Department of Private Law in Denmark, for instance, merely a "post office" that has to forward the case to the Bailiff's Court without delay, or, does it have an obligation to take a close look at the content of the received documents received ?

I have discussed this question with the director of the Department of Private Law in the daily newspaper ”Jyllands-Posten” in January 2001. The director was of the opinion that the Central Authority is merely a "post office" (her own term), whose only obligation is to for­ward the case to the Bailiff's Court. In J-P she explained:

 

The Department of Private Law has, as Central Authority, an obligation to forward applications for extraditions's to the Bailiff's Court(...).   [Implying that the Department had no obligation beyond that, JT].

 

In my opinion, director Dorrit Sylvest Nielsen has no support for her rigid attitude. Article 27 in the Hague Convention reads:

 

When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.

 

The Danish enforcement act does not cite this article verbatim but in the explanatory notes to the enabling act, the duties of the Central Authority are defined as follows:

 

Upon receipt of an application, the Central Authority performs an initial review, duringunder which it is investigated, whether all relevant information for handling the case is present. Likewise,  as well as there must be an evaluation must be performed as to whether the application can be complied with, based on the documentation receivedexisting basismaterial. If it is obvious, that this is not the case, the Central Authority can refuse to forward the application to the Bailiff's Court or to another Central Authority that is to shall handle it. [My italics, JT].

 

Thus, the Department of Private Law cannot disclaim responsibility for a considerable co-responsibility in the handling of a case by merely forwarding the case to the Bailiff's Court without any review of the documents. On the contrary, tThe Department of Private Law has, with its special expertise, has an obligation to evaluate, whether the forwarded case is sufficiently well-foundedwell founded to be handled by a Danish Court of Law. Whether the submitted documentation submitted  appears to be genuine and having  provided with valid signatures, etc.

This is in complete accordance with the role which the American Central Authority has according to a  described in a comprehensive guideline to the Hague Convention prepared by the American Central Authority. In this paper the American Central Authority states that it will only forward a request for assistance to have a child returned to the Central Authority in another country after they have determined that the information concurs with the regulations of the conventionConven­tion.

But practice in the USA is apparently more varied. The Central Authority states informed, in its annual report to the Congress in April of 2000, that it happens that they initiate a Hague Convention case, solely on the grounds that a parent expresses concern for a child overseas. The American Central Authority, then, does not necessarily wait to contact the countries abroad till the documentation is complete.

This method is extremely alarming. In the report, they justify the method by claiming, that the foreign Central Authority must be able to prepare the case, while it itself procures complete documentation from the plaintiff.

But cases under the Hague Convention are, in my opinion, much too serious to be initiated solely on grounds that a parent is concerned ! Thisat only calls even more urgently for the Department of Private Law's expertise and control function even more urgently.

WithIn regard to American applications, it is thus extremely important, that the Depart­ment of Private Law is very attentive. It is far from enough to function as a "post office". When the director of the Department of Private Law expresses herself in that way, it is in strong contra­diction to the Hague Convention and the Danish enforcement act.

As the former Danish Minister of Justice, Mr. Frank Jensen, voiced the same opinion as the director of the Department of Private Law, I would like to add that the American Central Authority has a completely different attitude, when a case case has reached a dead locks.

In the above mentioned annual report from the American Central Authority to the Congress referred to above, an example is mentioned in which former President Bill Clinton and former Secretary of StateForeign Affairs, Mrs. Madeleine Albright, actively entered into negotiations regarding an American father's visitation rights towith a child living in Germany. Visitation was established after the father had not seen the child for five years.

 

Illegal abduction or retention  ?

Article 3 in the Hague Convention reads as follows:

 

The removal or the retention of a child is to be considered wrongful where

a)  It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, and

b)  at the time of removal or the retention those rights were actually exercised, either jointly or  alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State.

 

The removal or the retention of a child is to be considered wrongful where

 

a)It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, and

a)at the time of removal or the retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

 

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State.

 

The somewhat abstruse formulation of Article 3 has as an effect does, that even trained lawyers, can  may have doubts as to how Article 3 is to be understood. Since the interpretation of Article 3, is a determining factor in the case that I will get back to in the chapter called "Holiday in Denmark turned into a Nightmare", I have asked for advice from the Central Authority in the USA and also from the Permanent Bureau of the Hague Convention in Holland. I have from both Authorities received concurrent answers from both Authorities, the essence of which is:

 

Illegal abduction or illegal retention can only be of question, if the visitation parent's rights ofto visitation access have in reality been violated. [My italics, JT]

 

In the case, which I will discuss in the chapter called "Holiday in Denmark turned into a Nightmare", the parties were separated and had an agreement with legal effects in the USA on joint custody and visitation rights. The child lived with the mother and the father had visita­tion rights. The mother went on vacation to Denmark outside the father's visitation period and would have returned to the USA, still outside the father's visitation period, had he not in the meantime initiated an abduction case under the Hague Convention. Thus, the father's visita­tion rights were not violated. Since no other judicially binding decision were in existence, the removal or the retention of the child in question was not to be considered wrongful.

According to Article 13 in the Convention, there are a series of situations, where Danish Bailiff's Courts can refuse the return of a child, even in cases of illegal abduction or illegal reten­tion, for example where. Among others I can mention:

 

a)      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.

b)      The judicial or administrative authority may also refuse to order the return of the child, if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

 

Thus, the Bailiff' Court has an obligation to pay attention to and listen to the child and avoid placing the child in an intolerable situation. As stated in "United Nations Convention on the Rights of the Child", there is no lower limit as to which age a child should be heard. In Germany children, as young as at the age of five years are heard. In my opinion, that is a reasonable age limit., Smaller children, especially, ought to be heard by a psychologist.

 

The tasks of the Bailiff's court and the High Court.

After this review of the Hague Convention, readers can hardly be in any doubt that lawyers dealing with the Hague Convention need a special and very profound professional insight. As can be seen in the above- mentioned case, the Danish legal system has demon­strated irresponsibility by letting an inexperienced deputy judge handle a Hague Convention case on her own. In Germany, judges receive special tuition and training in processing Hague Convention cases.

In Denmark, Hague Convention cases are not handled with the necessary care and ex­pertise. It is in reality the Bailiff's court that decides Hague Convention cases by rendering so-called orders. Furthermore, appeal to the High Court normally makes no difference, because the High Court usually decides the case on the basis of written information from the parties’ pleadings and the exhibitsnclosures from the Bailiff's Court. In the above- mentioned case, important but secret correspondence between the Bailiff's Court and the plaintiff's lawyer in the USA did apparently did not reach the High Court.

If the In consequence, Tthe High Court does, normally does not see the parties in the case, and it does not have any possibility of evaluating their trustworthiness. Questions of doubt are most likely not to be noticed and clarified or even disclosed, as neither party is present to point toat them.

However, if the High Court decides that the parties must appear in court, the case is pre­sented orally, the parties are questioned, and the case is proceeded with as a normal case in court. In my opinion, oral negotiations ought to be mandatory in Hague Convention cases. It is not comforting that judges decide cases that are of vital consequence for children's future by merely reading some complexicated judicial documents  NB??? which many not even have been translated into Danish or fully understood by the judges concerned..

According to the Hague Convention, a case must also be handled quickly. This This require­ment has been incorporated in demand is implemented into the Danish legislation. If the authorities in question have not come to a decision within six weeks, the plaintiff or the Central Authority can request an explanation for the cause of the delay. But Tthis requirementdemand, however, must not lead to a situation in which the case has to be rushed so much, that necessary investigation is excluded,,  that thorough checking of the sub­mitted documentation is omitted, or that mysterious documents that ought to be further investigated are accepted as valid and so forth.

There is no need for The Bailiff's Court to make it a point to make quick decisions, if due process is thereby jeopardised. The same applies tofor the High Court, if the Bailiff' Court's decision is appealed. For a Court of Law, it is a matter of routine to inform the involved parties, why a case has not been concluded.

In the case called "Holiday in Denmark turned into a Nightmare", almost all precon­ditions for a correct handling of the case under the Hague Convention were violated. It had dramatic and catastrophic consequences for my client and her son. They still fight for justice.