Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence
34 Pages Posted: 17 May 2005
Date Written: May 2005
This Article is an expansion of the Brigitte M. Bodenheimer Memorial Lecture on the Family I delivered on February 19, 2004 at the University of California at Davis School of Law. Notwithstanding the reference to "Abduction" in its title, the Convention covers violations of custody rights more generally, encompassing wrongful removals or wrongful retentions of children up to the age of 16. The Convention takes a somewhat unique approach to the problem of international parental abduction. Rather than address the issue through jurisdictional rules and the recognition of judgments - which is the approach of the Uniform Child Custody Jurisdiction Act ("UCCJA") and the more recent Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), as well as that of the new 1996 Protection of Children Convention - the Abduction Convention simply requires the "return" of a child who has been wrongfully removed or retained in another Contracting State. If a child (up to the age of 16) habitually resident in a Convention country is wrongfully taken or retained in another Convention country, the authorities of the country to which the child is taken are required to return the child to the country of their habitual residence. With respect to a child who is brought to the United States, this is done by filing a Hague application for return in the state or federal court of the State where the child is located.
JEL Classification: K29
Suggested Citation: Suggested Citation