I have been accused of child abduction
Have you returned to Germany with your child or emigrated abroad permanently? If you did not obtain the consent of the other parent or a court before doing so, this could actually constitute child abduction. You probably acted with the best of intentions. The consequences for your child are huge, however. What should you do now? Let us help you resolve the conflict about the child and act in the best interests of your child.
What is meant by child abduction?
The situation
If you have moved with your child from one country to another without having obtained the permission of the other parent or of a court (such as in the form of an order awarding you the sole right to determine the child’s place of residence), you may be charged with international child abduction.
The only question governing abduction is where the child was habitually resident prior to the move. Neither the child’s nationality nor their country of birth have any relevance.
Terminology
The term can be found both in national criminal law and in international legal provisions. Instead of child abduction, it is also called the wrongful removal of a child. We know that in practice the term “parental child abduction” covers many different circumstances and family situations.
A possible constellation
You lived in another country with the other parent and your joint child. You have joint parental custody. Your relationship with your partner has broken down. Other than that, there is nothing much to keep you there, and you want to return to your country of origin, where you also see better prospects for your child. While you as parents are arguing, you are clear that yes, you want to move – but not without the child.
That’s why you took your child or decided not to bring them back or return them again at the end of a cross-border visit, even though the other parent did not consent to a change of residence.
There may be reasons other than those given above why you thought you had no other way out, and you deliberately went beyond what you were legally allowed to do. You realise that you are asking a lot of your child. Perhaps, though, you were also not fully aware of the (legal) consequences of your actions.
What happens now?
If these points reflect your situation, you run the risk that your child will not be allowed to accompany you and may have to remain behind because the other parent is submitting an application under the Hague Child Abduction Convention and is enforcing it and/or involving the police.
The other parent whose custody right was infringed by the move has a number of ways of taking action against this removal. In many states child abduction is a criminal offence (in Germany it is covered in section 235 of the Criminal Code), so a criminal complaint may be filed with the police, which can lead to criminal investigations, an (international) arrest warrant and possibly also a subsequent conviction.
Procedure
If both the country of the child’s habitual residence and the country to which you have moved are contracting states of the Hague Child Protection Convention, the parent left behind can also submit an application for return in addition to any criminal complaint. This starts a procedure the purpose of which is that children who have been wrongfully taken to another country are to be returned to the country where they are habitually resident until the necessary agreement has been obtained or proceedings before a family court have been concluded.
The parent left behind can contact the Central Authority of their own country to make the application, in Germany the Federal Office of Justice, which will subsequently present an application for return to the court of the place to which you have moved with the child. However, under the terms of the Hague Child Abduction Convention the other parent can demand the handing over of the abducted child even without going through a Central Authority.
Possible obstacles to return
The court will then decide whether your child has to return or there is a reason against this. Among the grounds set out in the Convention is if it is established that a return would be associated with a serious risk to the child. Courts consider these objections – known as obstacles to return – carefully and apply a strict yardstick.
In most countries of the European Union, a return is ordered despite the risk if it is proved that protective measures for the child have been taken at the place of the child’s habitual residence.
Application time limit
Should the parent left behind not take any steps against the move within a period of one year, it will be assumed that the child has established a new habitual place of residence. In that case the courts of the new state of residence will have jurisdiction to rule on family court proceedings.
An order for return only requires the return of the child, not that of the abducting parent. If an order for return has been declared final and enforceable, this means that a bailiff can be instructed to return the child, forcibly if necessary.
To save this happening to you and your child, you should ensure the voluntary return of the child now at the latest.
We can talk to you to consider how a return initiated by you can be arranged.
Back to finding an amicable arrangement
In principle there is always the possibility of an amicable arrangement – outside court proceedings, but also within them, particularly within proceedings brought under the Hague Child Abduction Convention. There is a chance of reaching an amicable agreement even after these have been finalized.
Your child has a right of access to both parents. For this reason too, you should enable contact between your child and the other parent at every stage of any court proceedings or negotiation process.