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Q:What are possible defenses to having a court order return of a child? A:There are several possible defenses that may apply to a particular case, although different courts in various countries have interpreted Hague Convention on Civil Aspects of International Child Abduction somewhat differently. Generally speaking, Hague Convention allows following defenses: 1.the person, institution or other body having care of person of child was not actually exercising custody rights at time of removal or retention, or had consented to or subsequently acquiesced in removal or retention; 2.there is a grave risk that his or her return would expose child to physical or psychological harm or otherwise place child in an intolerable situation; 3.the judicial or administrative authority may also refuse to order return of child if it finds that 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; 4.The return of child under provisions of Article 12 may be refused if this would not be permitted by fundamental principles of requested State relating to protection of human rights and fundamental freedoms.
Q:Are there timeframes that apply under Hague Convention on Civil Aspects of International Child Abduction?
A:A number of them, including:
1.Children who have attained age of 16 years are not covered by Convention. 2.If a child has been wrongfully removed for less than one year, child’s removal is to be ordered forthwith under Convention. 3.If a child has been wrongfully removed for more than one year, child should still be returned but an exception is allowed –a court may choose not to return child if there is evidence that child is settled in his/her new environment. 4.Courts should act quickly in such cases but if one has not reached a decision within six weeks from date proceedings commenced, an applicant or Central Authority of requested State may officially request a reason for delay. 5.The Convention only applies to wrongful removals/retentions occurring after treaty became effective between involved countries. 6.Generally, Convention requires that countries act without delay in child abduction cases that fall within its parameters.
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Copyright © Wilcox & Wilcox, P.C. 2004
Attorney Trent R. Wilcox admitted to practice in the Arizona state courts and federal district court and is a member of the Maricopa County, Arizona State and American Bar Associations and has worked closely with the National Center for Missing and Exploited Children to return abducted children to the custodial parent. He has assisted parents from various countries in cases brought under The Hague Convention.