Since the 1970s, the phenomenon of child abduction has grown. Globalization and developments in family law, in particular the generalized attribution of joint parental authority in the event of separation or divorce, have meant that this phenomenon has continued to grow in recent decades.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the HC80) is the main legal instrument in this field since it is currently binding on 100 States.
A study conducted by Prof. Nigel Lowe (Cardiff University) and Victoria Stephens found that under the HC80, 2,270 applications for return were made in 2015. The study went on to establish that: 73% of abductions were by the mother; proceedings ended with the return of the child in 45% of cases, of which 17% were voluntary returns and 28% were court-ordered returns; 14% of applications were subsequently withdrawn.
The recent increase in bi-national couples is unfortunately also a cause of the increase in the number of abduction cases.
Among the most common abduction situations are those where the custodial parent decides to move abroad (mostly to return to his or her country of origin) without the agreement of the other parent holding parental rights; or where the parent holding access rights decides to keep the children abroad at the end of the holidays. In these cases it is important to understand what legal means are available to enforce one's own rights.
The main purpose of the HC80 is to restore the status quo ante, i.e. to ensure the return of the child who has been wrongfully removed or retained, and to ensure that existing rights of custody and access in one Contracting State are respected in all Contracting States (Art. 1 HC80).
The procedure
The HC80 applies in cases of wrongful removal or retention of a child up to the age of 16 (Art. 4 HC80). The removal or retention is considered wrongful if it violates a person's right of custody under the law of the State of the child's habitual residence immediately before the removal or retention and that right was being effectively exercised at the time of the removal or retention (Art. 3 HC80).
The parent whose custody rights have been violated by the removal of the child may apply for return either to the Central Authority of the country of the child's habitual residence (immediately before the removal) or to the Central Authority of any other Contracting State, including the country where the child is located after the abduction (Art. 8 HC80).
The Federal Central Authority of Switzerland is the Federal Office of Justice. The Greek Central Authority is the Department for International Judicial Co-operation in Civil and Criminal Matters of the Ministry of Justice.
It is also possible to bring legal proceedings directly before the competent court without going through the central authority.
If the conditions (Art. 3(1), Art. 4 and Art. 12 HC80) of the Convention are fulfilled and if no exception (Art. 13 HC80) is applicable, the competent judicial authority must order the immediate return of the child (Art. 12(1) HC80). It should be noted that the judge will not rule on the merits of the custody right but exclusively on the return of the child.
Our firm, specializing in family law, is at your disposal for any questions or requests for assistance in this matter. Thanks to our network of lawyers in Switzerland, Greece, but also elsewhere in Europe and worldwide, we will be able to find a solution to your problems.
