What is international child abduction?
International child abduction occurs when a child is removed from their country of habitual residence to another country, or is retained in a different country, in violation of the custody rights of the other parent or of a court order.
This is not necessarily a kidnapping in the criminal sense: often it is one of the parents who removes or retains the child without the other parent's consent. International instruments seek the prompt return of the child to their habitual residence, so that the court of that jurisdiction decides custody on the merits.
1980 Hague Convention
The Convention on the Civil Aspects of International Child Abduction is the most important instrument on this subject worldwide. Its fundamental principles are:
Key principles
- Prompt return: The child must be returned to the country of habitual residence without delay (Art. 12).
- Custody merits are not discussed: The proceeding is for return, not custody. The court of the requested state does not decide who should have custody (Art. 16, Art. 19).
- Central Authorities: Each contracting state designates a Central Authority that cooperates in locating the child and facilitating the proceeding (Art. 6-7).
- One-year time frame: If the application is filed within one year of the wrongful removal, return is virtually automatic, except for limited exceptions (Art. 12).
- Custody and access rights: Protects both custody rights and rights of access or visitation (Art. 3, Art. 21).
Inter-American Convention on the International Return of Children (CIDIP-IV)
Adopted in Montevideo in 1989, this Convention complements the Hague Convention within the inter-American system. It is particularly relevant when the case involves American states that are not party to the 1980 Hague Convention.
Key aspects
- Establishes an autonomous return procedure within the inter-American sphere.
- Includes provisions on locating the child and provisional measures.
- Compatible with and complementary to the 1980 Hague Convention.
- Costa Rica is a state party and applies both instruments in a coordinated manner.
1996 Hague Convention
The 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children complements and reinforces the 1980 Convention regime.
Contributions of the 1996 Convention
- Establishes clear rules of international jurisdiction based on the child's habitual residence (Art. 5).
- Allows adoption of urgent protective measures even in states that are not the state of habitual residence (Art. 11, Art. 12).
- Facilitates recognition and enforcement of protective measures between contracting states (Ch. IV).
- Determines the applicable law for parental responsibility (Ch. III).
Procedure in Costa Rica
Costa Rica has a robust legal framework for processing international return applications. The Central Authority is the Patronato Nacional de la Infancia (PANI), and proceedings are handled by the Juzgado de Niñez y Adolescencia (Children and Adolescents Court).
The new Family Procedural Code (Law No. 9747) incorporates specific provisions for international return proceedings, aligning Costa Rica's procedure with international standards of expeditiousness and protection.
Exceptions to return
The 1980 Hague Convention establishes specific exceptions that may prevent the return of the child. These exceptions must be interpreted restrictively and the burden of proof falls on the party opposing return:
Article 13 exceptions
- Grave risk (Art. 13b): That return would expose the child to physical or psychological harm, or place the child in an intolerable situation.
- Consent or acquiescence (Art. 13a): That the requesting parent had consented to or subsequently acquiesced in the removal.
- Child's objection: If the child has reached an appropriate age and maturity, their views may be considered by the court.
- Settlement (Art. 12, par. 2): If more than one year has elapsed and the child has become settled in the new environment.
Our experience litigating these exceptions — both invoking and rebutting them — is fundamental to the outcome of each case. We know Costa Rican and international case law in detail.
