On several NCMEC posters you’ll see this: “The child’s [parent] has applied for his/her return to the United States under the international civil treaty: The Hague Convention on the Civil Aspects of International Child Abduction. Do not pick up based on this information.” These posters are unique in another way: instead of a law enforcement contact number, you’re directed to call the NCMEC itself with information.
Very few people, including very few family court judges, know what the Hague Treaty is. It was drafted in the early 1980s in response to the abduction of children to other countries by their own relatives. A typical case is when two people from different nations marry, live in one of their countries, have kids, then split up, and one parent returns to his or her home country and takes the kids, in violation of a custody agreement from the country where the couple had lived before the break. Until the Hague Treaty was drafted, there was pretty much nothing the left-behind parent could do. Now that we have the Hague Treaty, there’s almost nothing the left-behind parent can do.
The left-behind parent is, I believe, supposed to get a lawyer and file papers, proving they have custody of the kid in Country 1, and that Country 1 is the kid’s “place of habitual residence,” and they ask Country 2 to honor the Hague Treaty and return the child to Country 1. A gentlemen’s agreement, basically. The problem is, Country 2 can choose not to honor the request, and there’s nothing anyone can do if it says no, except appeal it in the courts in an expensive and lengthy process. From my own observation, the only nations that consistently honor the treaty and return abducted children to their home countries are the United States and Great Britain. Fathers seeking their children, I’ve heard, are at a particular disadvantage. I’ve read that there hasn’t been a single case where a searching father was able to recover his child from Mexico under the Hague Treaty. Even if the child does end up being returned, it can take years.
Furthermore, the Hague Treaty of course only applies for nations that have signed it. The Mexico has signed and, I think, Australia and most of Europe. I believe Japan and South Korea haven’t signed, and I don’t think China has either, nor most African and Middle Eastern nations. If your child is abducted to a country that didn’t sign the Hague Treaty, then you’re really SOL. (Particularly if you’re a woman and your ex is a Muslim who’s taken the kid to a country that practices Sharia law. But that’s another story.)
I suppose the Hague Treaty, impotent as it is, might have been the best people could do. The situation is fraught with problems. We’re dealing with two different countries here, two different legal systems, and of course, except under very special circumstances, one country’s legal rulings cannot be enforced outside its borders. To make matters even more complicated, many nations consider child custody disputes to be a private matter between families, not something for the law to get involved with.
When a parent files a Hague Treaty application for the return of their kid, the case comes before a court in the country where the child’s being held. Of course judges there would tend to favor their own citizens, and many of them don’t know about the Hague Treaty anyway. Furthermore, because the legal process takes so long, there’s every chance that the child might have been living in Country 2 for years before the case comes up before a judge. The Avendano children for instance, whom I plan to add to Charley tomorrow, have apparently been living in Mexico for longer than they ever lived in the United States, their so-called “place of habitual residence.” Of course a judge will be scratching his head over this, and in cases like that there would be genuine concern as to whether it’s in the best interest of the child to separate it from one parent and country it’s been living in for a long time, and return it to another parent and a nation it hasn’t seen in many years.
In short, it’s a mess.
Of course, the Hague does have some successes. Just not nearly as many as there ought to be. Failing this option, a parent has a few other things they can do, such as try to negotiate with the other parent, or hire commandos to “counter-kidnap” the child.
Most of the Hague Treaty children listed on the NCMEC aren’t “missing” in the sense most people think. Their location is often known, and sometimes the searching parent is allowed to have short visits with them. But they’re still missing in the sense that they’re not where they’re supposed to be. International child abduction hurts everybody. If only there were a better solution.