Wrongful Removal or Non-return of a Child

Guide sections

About International Family Mediation icon
Section 1: About International Family Mediation

• What is International Family Mediation?
• Can a mediator decide who is right or wrong?
• Is what I tell the mediator kept confidential?
• How much does mediation cost? Who pays the fees?
• My ex refuses to go to mediation. Is mediation possible?

For Which Conflict and When Mediation Can Be Used icon
Section 2: For Which Conflict and When Mediation Can Be Used

• What kind of problems can mediation help me to resolve?
• Do courts and administrative authorities know about mediation?
• Can I call in mediation services after a court judgment?
• I do not have access to my children anymore. Can mediation help me?

Reasons for Choosing International Family Mediation icon
Section 3: Reasons for Choosing International Family Mediation

• What are the advantages of going for mediation?
• Why should I go for mediation if we already have lawyers who are helping us?
• My ex does not accept or understand how things happen in my culture...
• I am worried that my partner might take our children abroad and not bring them back. Can mediation help?
• How can we talk to each other in mediation sessions if we cannot do so outside them?

How International Family Mediation Is Carried Out icon
Section 4: How International Family Mediation Is Carried Out

• How can the mediation be carried out if we do not live in the same place?
• Can my children participate in the mediation?
• Can I have a discussion with the mediator alone?
• Can I bring a friend or someone to help me in the mediation?
• Can we have two mediators? 

International Family Mediation and the Law icon
Section 5: International Family Mediation and the Law

• Will my rights be respected during mediation?
• Does an agreement resulting from mediation have legal standing?
• What happens if mediation does not result in anything concrete?
• Will the mediated agreement have legal effect in another country?
• Do we have to suspend the legal proceedings in order to go for mediation?
• Will a mediator also give legal advice?

Wrongful Removal or Non-return of a Child icon
Section 6: Wrongful Removal or Non-return of a Child

• I retained my children in my home country and I’m afraid to go back. What can I do?
• How can mediation help me get my child back?
• Is it ever too late for mediation?
• I have the impression that mediation is weaker than a judicial procedure…
• Will mediation work if the contact between myself and the children has been completely cut off?
• My ex has taken the children and refuses to communicate. How can the mediator reconnect us?

When a move or relocation to another country is considered wrongful

A parent, particularly one who is the primary caretaker of the children, might think it totally legitimate to move to another country with the children. However, in most cases such a move is lawful only with the consent of the other parent or after authorisation of the relocation by a court or other authority.

An example: You are abroad on holidays with your children visiting your family in your country of origin. The relationship with the children’s father, who stayed back home, is not going well. Your parents and friends suggest that you should simply stay with the children and not return to your partner. Keep in mind that, even though leaving your country of habitual residence with the children for the purpose of your holidays was authorised, if you are staying longer than agreed, the non-return of the children might constitute a wrongful retention, which would have grave consequences.

Depending on the laws of the country in which the children have their habitual residence, the other parent’s agreement might also be needed for relocation to a distant location in the same country. Even where the law grants sole custody to one parent, the other parent might have a veto right when it comes to relocation. There could also be other holders of parental responsibility, such as a legal guardian, whose approval might be needed. Should the necessary consent not be given, an application might have to be made to a court or other authority to permit relocation.

It is, therefore, crucially important for a parent who is considering settling abroad with the children to get information on whose authorisation is needed. Among the sources to consult for such information are specialised lawyers, the Central Authority established under the 1980 Hague Convention on International Child Abduction in the country of habitual residence, and International Social Service advisers.

Consequences for the child

Psychologically, there is a big difference between the effects of a lawful relocation abroad and a wrongful removal or non-return of a child.

Wrongful removal or non-return of children entails an abrupt and possibly definitive interruption of their links with their habitual environment (such as home, school, sports, extended family, friends, neighbours, pets) and, most importantly, their contact with the other parent. Thus, a wrongful removal or non-return can have grave psychological consequences for children and threatens their important right, guaranteed by the United Nations Convention on the Rights of the Child, to have continuing contact with both parents.

In such situations, children may react with aggressive behaviour, depression and/or withdrawal. They may also be overwhelmed by fear of rejection or abandonment and find it difficult to trust their parents or people in general. They might develop emotional problems that could make it difficult for them to express affection, or they could suffer loss of self-regard or create distorted images of reality. The physical health of the children might also be affected.

The wrongful removal or non-return of a child might set off a chain reaction that could include police and judicial intervention as well as personal actions by some family members to return the child to the other parent. Such actions could aggravate the harmful impact on the child. In extreme cases, children have been known to end up living in hiding or in a situation of permanent flight, which is gravely damaging to their development.

Mediators make parents who are undergoing severe conflict aware of these risks and emphasise that children need to have a loving and emotionally stable relationship with each parent and with the members of their extended family.

“A secure world collapsed; it was completely shattered after the abduction.”

 A woman

“They do not realise our sadness and our helplessness, too selfish!”

 Alia, 14 years

“The way I’m looking back on it now is that we were being treated not as developing human beings but as weapons. Weapons of an emotionless soul.”

 An adult, abducted by one of his parents

Consequences for the parent who leaves with the child

A cross-border wrongful removal or non-return of a child generally has grave legal consequences. Civil remedies for breach of custody rights through cross-border removal or non-return of a child exist under international, regional and national laws. The parent who leaves the country with the children or keeps them abroad beyond an agreed time period without the necessary permission may have to face civil court proceedings in the current country of residence, which could result in a court order to return the children.

In addition, a criminal prosecution in that parent’s previous country of habitual residence may also have effects in the country to which the children have been taken, and the parent may risk a prison sentence.

Besides the grave risk of social isolation, the stress and feelings of anxiety in connection with the legal consequences may lead to severe depression. This could be accentuated by the children’s loss of trust in the parent. Testimonials by adults who were wrongfully removed as a child attest to this.

“I sensed that my wife wanted to leave with the children to return to her home. I was able to convince her to go to mediation. It was there that she realised the legal consequences of such a precipitous departure and how maintaining contact was important to me.”

 A father

“My mom had created a bubble around us and had said that our dad was a monster.”

 Piotr, 9 years

Consequences for the other parent

For the parent who has been deprived of a child, the wrongful removal or non-return comes as a shock. It brutally and abruptly puts an end to the parent-child relationship and the parent often fears that the child is gone forever.

The resulting feelings of anxiety, helplessness and despair are made worse when the parent does not know the exact whereabouts of the child. Even if the whereabouts are known, the parent may not find a way to make contact with the child.

There could be further difficulties even if the parent is permitted a meeting with the child, for example because of geographic distance, travel costs or visa restrictions. Maintaining contact by using modern technology might also not be possible because of its unavailability at the child’s location, or inappropriate given the age of the child. An additional problem might be that the child may, after a certain time, no longer be able to speak the language of this parent.

“The distance is terrible. After every call, I fall to pieces and it takes me a lot of time to get over it. Our phone conversations are so short. And I’m telling them and reaffirming to them: I’m here and I will do everything to see you again!”

 A mother

The 1980 Hague Convention

The Hague Convention of 1980 on the Civil Aspects of International Child Abduction defines as wrongful every removal or non-return of children under the age of 16 from their place of habitual residence that violates the custody rights of a parent (see article 3 of the 1980 Hague Convention on International Child Abduction).

The Convention establishes procedures that aim to secure the prompt return of the children to their country of habitual residence, as well as to ensure that the contact rights of the parent who has been deprived of the children are protected. The courts of the country to which they have been removed, or from which the children have not been returned, must order their immediate return to the country of habitual residence. The Convention only allows extremely limited exceptions from this general principle.

In order to prevent conflicting custody decisions, the Convention provides that no decision on the merits of custody can be rendered in the country where the children are currently resident while the return proceedings are going on. The idea is that after the children have been returned to the country of habitual residence, the courts of that country will determine the division of parental responsibility and decide where the children should reside.

Information about whether the 1980 Hague Convention applies in individual cases can be obtained from the Central Authorities established in each Contracting State under the Convention. The Central Authority may also be able to provide information on the applicability of other regional, multi- or bilateral instruments that provide remedies in cases of cross-border wrongful removal or non-return of a child.

“Some parents had not spoken with their lawyer at all, some parents had inexperienced lawyers and were not aware that a defence under Article about exception of return of the 1980 Hague Convention was difficult to run.”

 A mediator

Where the 1980 Hague Convention does not apply

Where the 1980 Hague Convention on the Civil Aspects of International Child Abduction is not in force between the two countries concerned, there may be other relevant multilateral, bilateral or regional legal instruments that can be of assistance. Furthermore, recourse can be made to the remedies offered by national law.

In most countries, parents who have unlawfully removed a child can be imprisoned for six months to 10 years. They can be pursued for committing a criminal offence (child abduction) and be held in contempt of court if they have not complied with a court order to return the child.

Mediation to resolve a case of wrongful removal or non-return of a child

Cross-border family mediation always faces a number of challenges that are distinct from those in domestic conflicts – the geographic distance between family members, the interaction of various judicial systems, and time – as there is always the risk of children losing contact with one of their parents. In cases of wrongful removal or non-return of children, a particular challenge is the tight time frame within which mediation has to take place, in accordance with the applicable judicial provisions and frameworks.

In a number of countries, specialised mediation services have been developed that run parallel to, and in coordination with, mechanisms under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Yet, the content of the mediation remains strictly confidential. In general, the judge will only be informed about the outcome of the mediation, not its content.

In general, international family mediation can be used at all stages of the judicial proceedings without disrupting communication or cooperation with the administrative and legal institutions.

Mediation is possible immediately after the wrongful removal or non-return of the children, or when an application for return or a complaint is filed (at the beginning of proceedings). Parents are often informed by courts or administrative authorities of the possibilities of mediation at this stage, as it may avoid the forced return of children. The mediators are aware of the constraints of time limits and are used to intervening rapidly.

When mediation is commenced after a judicial decision (such as a court order for the immediate return of a child) has been rendered, or after an appeal has been lodged, it can assist in speeding up the process of resolving the issue and agreeing on arrangements for the return of the child. Even when the positions of the two parents are very far apart, the fact that an appeal process could be long and without guarantee of success would be an added incentive for the parties to ensure the success of the mediation.

Post-judicial mediation in cases of wrongful removal or non-return of a child is advisable, since it also takes into account the longer-run interests of all the parties. The return or non-return of a child does not resolve the human conflict between the parents and the possibility of another equally traumatic wrongful removal and its consequences may still exist after a judicial decision. De-escalation of tensions and resentment through mediation could enable the working out of durable solutions anchored in the reality (in terms of financial, geographical and communication factors) of each parents’ life.

“Being repatriated was awful. It’s as if they had ripped out my life and given me another, without asking my opinion. I did not have any choices, it was imposed on me.”

 A person speaking about her return under the 1980 Hague Convention procedure

Does mediation work in cases of wrongful removal or non-return of children?

International, regional and bilateral instruments explicitly encourage amicable solutions and resolution of cross-border family conflicts through international family mediation. The experience of the specialised mediation services that have been operating in some countries for several years shows that mediation can work even in the very conflictive situation of a wrongful removal or non-return of a child.

Mediation does not always bring about an agreement and it is not suitable in some cases. If, after initially assessing the situation together with the parents, mediators conclude, for tangible reasons, that the mediation would have only a very small chance of succeeding, they tell the parents so.

When underpinned by the relevant legal instruments, mediation is an opportunity to:

  • get back in touch and spend time with the children for the parent who was deprived of them;
  • end in an amicable way the nightmare that the wrongful removal or non-return has created for the parents, the children, and often the extended family;
  • restore communication and discuss how to find the way back to cooperation as parents in the best interests of the children;
  • work out an agreement with regard to the wrongfully removed or non-returned child, as well as the modalities of cross-border parent-child contact where applicable, and to present the agreement to the court in which the return proceedings are taking place;
  • end the parental dispute quickly; otherwise, it could go on for a very long time since return proceedings in a court would only restore the initial situation of the child back in his country, leaving the question of who is to have custody of the child and where the child will live, etc., to be decided later in separate court proceedings.

The existence of unresolved cases of wrongful removal and re-abduction indicates that the legal instruments put in place to protect children would benefit from increased use of a complementary mechanism that has the human conflict as its focus. Evidence shows that the number of agreements reached in mediation increases when parents engage in the process fully. Parents report satisfaction with the results and effects of mediation even when it did not solve all the problems confronting them. More testimonies can be found in the comprehensive study Mediation Pilot Scheme published by reunite International Child Abduction Centre.

“After several weeks, I came back with my son. My wife did not want to leave me alone with him. It was in mediation that I was able to make her understand that I care for his well-being, that I wanted him to have both parents.”

– A father

“The ultimate result for me was not achieved, that of my son returning to Australia, but this is what mediation is about. I am happy with the end result as I have an acceptable outcome which could be better than if I went to court. Hopefully it also creates a less stressful environment for my son.”

– A mediation participant