Monday, January 05, 2009

China and International Child Abduction

We were recently asked to research the issue of potential child abduction in China and the remedies for securing the return from China of a child if the Chinese national parent kept her in that country. The results of our research were depressing.
China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau). Nor are there any signs that China is about to join the Convention or is even considering doing so.
There are no international or bilateral treaties in force between China and the United States dealing with international parental child abduction.
Furthermore it is unusual for foreign court orders to be recognized in China and that is most especially so when it comes to foreign child custody orders. Chinese law requires the existence of a treaty or de facto reciprocity in order to enforce a foreign judgment; neither exists between the United States and China. (Clarke, Donald C.,The Enforcement of United States Court Judgments in China: A Research Note (May 27, 2004).
China is also reported to have an enormous problem of domestic child abduction and child trafficking, with numerous articles on the topic printed even in the communist party newspaper, China Daily.
Finally, China has effective exit controls -- which is usually a good thing since it can prevent child abduction -- but children with Chinese passports, including dual national children, are reportedly barred from leaving China without the consent of both parents. Since that requires the consent of the allegedly abducting parent, the left-behind parent’s opportunity for self-help may be denied.
All of this means that U.S. courts should be most reluctant to sanction trips to China by dual national children accompanied by a Chinese national parent if the other parent raises genuine and well-founded fears that the child may not be returned.
Jeremy Morley