International child abduction: practical difficulties in return proceedings

On September 21, 2022, at the University of Bordeaux European Summer University "Childhood Without Borders" (Enfance sans frontière), I led the workshop on the practical difficulties of return proceedings, during the day devoted to international child abduction chaired by Jean Sagot-Duvauroux. First the fundamentals, then case studies. Here are the key takeaways, along with the presentation materials.

First, identify the applicable framework

Before taking any step, you need to determine which instrument applies, because it dictates the tools available. Several situations must be distinguished: removal within the European Union, governed by the Brussels II ter Regulation; removal between States party to the 1980 Hague Convention, the 1980 Luxembourg Convention or the 1996 Hague Convention; removal to a State bound to France by a bilateral convention; and removal to a State that is party to no convention at all.

Wrongful removal is a precise concept. Under Articles 3 and 4 of the Hague Convention of October 25, 1980, the removal or retention of a child under 16 is wrongful when it breaches rights of custody that were actually exercised. Those rights are assessed under the law of the child's habitual residence before the removal; in France, they flow from joint parental authority (autorité parentale conjointe), even where the child's residence was set with the parent who took the child. The Convention's sole purpose is the child's prompt return: the court does not rule on the merits of custody.

Prevent the departure, then trigger cooperation

Once the risk of departure is identified, several measures can be combined: keeping the passports, objecting in writing, asking the prefecture for a travel objection (opposition à la sortie du territoire), valid for fifteen days and not renewable, or asking a judge for a travel ban (interdiction de sortie du territoire). If there is no court order yet, it is worth asking the family court judge (juge aux affaires familiales) to set the child's residence.

Criminal proceedings are available (Articles 227-7 and 227-9 of the French Criminal Code), but they must be handled with care: criminal cooperation is rarely effective in family matters, and the threat of arrest on returning to France can prove counterproductive when the goal is the child's return.

Central Authorities are at the heart of the system. In France, this is the Department of mutual assistance, private international and European law (Département de l'entraide, du droit international privé et européen) at the Ministry of Justice, a free service. Applying to it is not mandatory but strongly encouraged: locating the child, exchanging information, encouraging a voluntary handover or an amicable solution, initiating or facilitating court proceedings. The application must establish the child's age, habitual residence, rights of custody and the lack of consent to the removal; translations are often required.

The race to judgment and the exceptions to return

Before the court, the application concerns the return only. It falls to a specially designated court (tribunal judiciaire) in each court of appeal district and follows the expedited procedure on the merits (procédure accélérée au fond), with the goal of a decision within six weeks at each level. Two routes coexist: the parent files directly, or the Central Authority acts through the public prosecutor. That procedural choice matters, especially when one of the Central Authorities is slow to act.

If a court is asked to rule on the merits of custody during the return proceedings, it must stay its decision pending the ruling on return (Article 16 of the 1980 Convention). Hearing the child, and the applicant parent, are points to watch, because they determine whether the decision will be recognized.

The Convention provides for exceptions to return, which are strictly construed: more than one year between the removal and the court application, with the child settled in the new environment; non-exercise of custody rights, or consent or acquiescence to the removal; a grave risk of harm; and the objection of a sufficiently mature child, which is not enough on its own. Within the EU, the Brussels II ter Regulation strengthens the principle of return: return may be ordered despite a risk if adequate arrangements have been made to protect the child, and the court of habitual residence may rule on custody notwithstanding a foreign non-return decision.

Enforce the order and open the door to mediation

Obtaining an order is not enough: enforcement has to be prepared. It can be voluntary, on terms discussed with the parent who took the child, and follow a timetable that respects the child's interests, with support from mediators, social workers, a psychologist or an interpreter. Police assistance remains the last resort.

International family mediation, encouraged by Article 25 of the Brussels II ter Regulation, should run in parallel with the other actions, given the time involved. Negotiating entry into mediation, indirect shuttle mediation, binational co-mediation, videoconferencing: its methods adapt to distance. The resulting agreement can be made enforceable in both countries through double court approval (double homologation).

The second part of the workshop put these tools into practice through case studies: anticipating an announced departure, responding to a removal to another Member State, to a non-EU State party to the 1980 Convention or to a State that is not a party, and dealing with a wrongful-removal argument raised during a divorce. The common lesson: proceedings overlap, and strategy is built by coordinating return, the merits and negotiation.

Key takeaways

1. 1Identify the applicable instrumentEU law, the 1980 Hague Convention, a bilateral convention or no convention at all: the available tools depend on it.
2. 2Anticipate the departurePassports, written objection, travel objection or travel ban: prevention beats reaction.
3. 3Use the Central AuthorityIt is free and strongly encouraged; the application must be complete and often translated.
4. 4Act fast in courtProceedings aim for a decision within six weeks at each level; exceptions to return are strictly construed.
5. 5Prepare enforcementVoluntary, supported enforcement protects the child better; police assistance is the last resort.
6. 6Negotiate in parallelInternational family mediation can lead to an agreement made enforceable in both countries.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.