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The Hague Abduction Convention requires each treaty party to establish a Central Authority to provide assistance in both “outgoing” cases in which a child is taken away from a country and “incoming” cases in which a child has been brought into the country. The Convention leaves it up to each country to decide how the Central Authority will operate.
In some countries the Central
Authority exercises a leading role in handling cases under the Convention. In
other countries, such as the United States, the Central Authority’s role is
extremely limited. This discrepancy is often unrecognised, and it may lead to confusion
and even serious error.
In Australia,
the Central Authority is a department within the Attorney-General's Department
of the Australian Government. There are also separate Central Authorities for
each Australian state or territory. In most Hague Convention cases in
Australia, the appropriate Central Authority itself initiates judicial
proceedings in the Australian courts for the return of children allegedly
abducted to Australia. Indeed, the Central Authority is the plaintiff in any such
case and the Central Authority lawyers do not take instructions concerning the
conduct of such cases directly from the left-behind parent, who is not even a
party to the legal proceedings. Left-behind parents may, in the alternative,
start a case in their own name but this is unusual and perhaps ill-advised.
Similarly,
the Central Authorities in Germany and New Zealand take on a substantial role in
initiating judicial proceedings under the Convention.
However,
cases in the United States are handled in a completely different way. The Central Authority in the United
States is the State Department's Office of Children's Issues in the Bureau of
Consular Affairs. It does not initiate litigation in any Hague Convention case
and it has no power to do so. It has no responsibility or function to bring any
cases under the Convention or to be involved in any significant way in any
Hague Convention judicial proceeding. The Office of Children’s Issues has no
judicial function whatsoever. It has no authority to secure a child’s return
pursuant to the Convention. It is exclusively the responsibility of the
left-behind parent to retain counsel and to commence a court case in the United
States to seek an order that an abducted child must be returned.
Upon receipt of an application that
is made by a left-behind parent under the Convention, whether the application
is submitted by a foreign Central Authority or even if it is submitted directly
by the left-behind parent, the United States Central Authority may assist with
locating the child, and it will send a simple letter to the other parent suggesting
mediation or a voluntary return, but it will certainly not file a case in court
for the return of the child.
Unfortunately, foreign Central
Authorities may not fully understand that the U.S. State Department does not
have any proactive role in litigating Hague Convention cases and they may not
inform left-behind parents that they must start their own cases in the United
States.
The fact that this critical
distinction between Central Authorities that handle the Hague Convention case
and those that do not is often misunderstood is even reflected in the current
website of the Australian Central Authority, which includes advice on “International parental child
abduction” that includes
a flowchart of the “Application process for return of an abducted child to Australia.”
The flowchart states that the steps to recover a child who has been abducted
from Australia are as follows:
·
The
first step is “Application received by Australian Central Authority (ACA).
·
The
second step is “ACA assesses application against the Hague Convention.”
·
The
third step, if there is a positive assessment, is “Application accepted by ACA,
transferred to relevant CA in other country.”
·
The
fourth and critical step, according to the flowchart, is:
“Overseas
central authority takes appropriate action which may include mediation, seeking
a voluntary return, or filing in court for the return of the child.”
Unfortunately,
that advice is completely incorrect and misleading with respect to abductions
to countries such as the United States. In particular, the U.S. Central
Authority does not file a court case for the return of the child. To make
matters worse, the Australian website does not warn left-behind parents that it
is their sole responsibility to start the Hague case in the United States, and that
the U.S. Central Authority will not handle it.
Similar confusion is shown in a case
that is currently before the courts in New York. The Central Authority in
Luxembourg is the State Prosecutor’s Office (the Parquet Generale Cite
Judiciare). As is the case with Australia, that office is responsible for
prosecuting incoming abduction cases in Luxembourg and its role is expansive
and proactive. In the pending matter in New York, the Luxembourg Central
Authority submitted to the U.S. Central Authority a formal referral of an
application for a child’s return to Luxembourg, in which it requests the U.S.
State Department to “take all the measures contained in article 12 of the above-mentioned
Convention for the immediate return of the child to Luxembourg.” As stated above,
the State Department does not take any such action and cannot do so. Is it any
wonder that a left-behind parent would expect that the U.S. State Department is
handling the matter?
In my extensive experience, left-behind
parents often think that, merely because they have submitted an application for
their child’s return from the United States under the Convention, they have
“started a Hague case.” Nothing could be further from the truth. Central
Authorities must ensure at a minimum that they do not provide incorrect
information to their citizens. Nor should they suggest that left-behind parents
should seek legal advice from the U.S. Central Authority, which cannot provide
any such advice. In addition, I must reluctantly state that many of my clients
have informed me that they have received incorrect or incomplete advice from
the U.S. Central Authority.
Left-behind parents must be warned
that, if they do not commence a case in a U.S. court within one year of the
date of the wrongful removal or retention, the abductor will be able to take
advantage of the provision in Article 12 of the Convention that the court need
not order the return of a child who has become settled in the new environment. The
International Child Abduction Remedies Act provides that “the term ‘commencement
of proceedings’, as used in Article 12 of the Convention, means, with
respect to the return of a child located in the United States, the filing
of a petition in accordance with subsection (b) of this section.” 42
U.S.C. § 11603(f)(3). Accordingly, the one-year period is not tolled by reason
of the mere filing of a Hague application even if the left-behind parent
believed that filing the application was sufficient or believed that the U.S.
State Department was handling the case. Monzon
v. De La Roca, 910 F.3d 92 (3d Cir. 2018).
The submission of an application to the Office of Children’s
Issues does not constitute the initiation of judicial proceedings, does not
stop the clock for purposes of the “one year and settled” exception to the
Convention, and does not require the alleged abductor to take or not to take
any action. The Office does not appoint attorneys for left-behind parents, and
it does not file return petitions with the courts. Unlike several other
countries, and notwithstanding the advice that may be provided by some Central
Authorities, the responsibility for starting a Hague case in an appropriate
court in the United States rests exclusively with the
left-behind parent.
