What is parental child abduction?
The concept of parental child abduction can be quite challenging to explain without rambling, so I will try my best. An ex-colleague told me that a mother cannot abduct their child because children belong to them. They then chased me around the office with a dictionary definition of ‘abduct’. The definition was along the lines of removing somebody illegally by force or deception. She heckled that this definition made the concept insulting to her and impossible. I left it there because we were at work and I hadn’t shared my personal circumstances with them. However, her comments were very hurtful.
The Hague Convention
Parental child abduction is a large part of the Hague Convention on the Civil Aspects of International Child Abduction (Abduction Convention) – Wikipedia provides a good introduction. It doesn’t necessarily involve any ‘illegal’ (i.e. criminal) action. It also doesn’t have to involve ‘removal’ of any kind (my situation didn’t). Rather, the focus is on wrongful removal or retention. Article 3 of the Abduction Convention uses a two-tier test to determine whether retention or removal was wrongful:
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 retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Japan has been a signatory state to the Abduction Convention since April 2014, so this is an appropriate test. In my circumstances, I have rights as the father, and found that this was largely unquestioned when I filed my application to Japan’s Central Authority (through my country’s central authority). As such, I am pretty happy with this test, and believe it serves as a solid definition for future reference.
What are the ‘civil aspects’?
The Abduction Convention can be confusing (and frustrating) because tit doesn’t provide any criminal offences. The ‘civil aspects’ (as per the title) are the non-criminal aspects of child abduction. This is often a hard pill to swallow because abduction in itself can be a crime in many jurisdictions. So why does the Abduction Convention only deal with civil claims? I think it comes down to the purpose of the Abduction Convention.
In the Abduction Convention Outline (which provides some insight into what the drafters may have been thinking), importance is placed on the Abduction Convention being compatible with national constitutions. Also, ‘a return decision is not a decision on the merits of any custody issue’. I suspect that with an international convention like this, speed, practicality and compatibility with existing laws were all considerations.
Later, I will discuss improvements to the Abduction Convention. However, for now, I hope this gives you a slightly better understanding of the concept itself.
Reflective notes…
For further coverage, please note that:
- Technology can be used to cut off communication and isolate children from one parent. This is an emerging issue that I think will become increasing prevalent.
