My child has been abducted
Child abduction represents a particular escalation of the conflict between the parents. It describes a situation in which a parent takes the joint child to another country or retains them there against the will of the other parent without having the sole right to determine the child’s place of residence. For the parent left behind, this brings the acute fear that they will lose the child. Does this sound familiar? We advise on the possible next steps.
- What constitutes international child abduction?
- Possible motivations for abducting a child
- Your child has been abducted: what you can do
- Your child has been abducted to a contracting state to the Hague Child Abduction Convention
- Your child has been abducted to a country in which the Hague Child Abduction Convention does not apply
What constitutes international child abduction?
International child abduction is when
- a parent has taken a child abroad or refuses to return the child to the other parent after the child has visited or holidayed abroad
and - parental custody was awarded either to both parents jointly or only to the parent who was left behind
and - the parent with (joint) custody – in some countries also the parent with a right of access – has not consented to the child’s move.
In cross-border family situations the parents’ rights do not necessarily correspond (solely) to German law concerning custody. For more, please refer to our page on international custody law.
What to do in an acute case of abduction
Are you worried that your child is being abducted at the moment, or about to be? Then read this first.
Possible motivations for abducting a child
How could it have got to this stage?
Our consultancy experience shows that child abductions occur in very different families. The parents or children concerned may have German or another nationality, may or may not be part of binational family constellations and may have common or different cultural backgrounds.
Sometimes the abducting mother or father is the main carer who normally lives with the child; sometimes it is the parent with right of access who abducts the child with whom they are not (or no longer) living together.
Many parents are not aware of the consequences that their behaviour has. As ZAnK, it is therefore one of our tasks to raise awareness of this situation.
There is no simple answer to the question of what brings a parent to abduct their child. The reasons are many and varied. We often hear, for instance:
- the wish (after a separation) to return to their home country;
- social isolation, experiences of discrimination, poor job prospects, lack of financial security in a country, or family ties, a social network and good job opportunities in the other country;
- the worry that they will lose the child following the break-up;
- fears of discrimination by state institutions;
- different cultural views or a different understanding of rights;
- the attempt to exert pressure and stop a separation;
- violence in the family.
Regardless of how justified the abducting parent feels in their actions, parental abduction of a child to another country is a crime in Germany and most other countries. As the parent left behind, you find yourself in a situation of shock. Above all, though, the wrongful removal or retention of a child has far-reaching consequences for the child concerned. These are often unintentionally underestimated by the parents involved.
While the guidance below is intended to help you determine what to do after a child has been abducted, here you can find information that may help you prevent an imminent abduction.
Your child has been abducted: what you can do
Your options as the parent left behind to take action against the abduction and enforce your rights depend in the first instance on whether there are international legal agreements with the country to which your child has been taken unlawfully.
Primary among these is the Hague Child Abduction Convention of the Hague Conference on Private International Law – an international, inter-country organisation – of 1980. It has around 100 Contracting States by now, including Germany, all of which have undertaken to return a child that has been taken abroad by one of the parents as quickly as possible to their original place of residence. This is the country in which the child was “habitually resident”. To that end a return procedure was agreed which is geared to the restoration of the initial situation and excludes an assessment of where it would be better for the child to be brought up. The sole concern is to eliminate obstacles to the child’s return without having to solve disputes about custody, the recognition/enforcement of foreign judgments and other lengthy issues of international law. Cooperation between the individual Contracting States is conducted via “Central Authorities”, which are usually located at the ministries of justice or judicial authorities.
Your child has been abducted to a contracting state of the Hague Child Abduction Convention
If your child is in a contracting state of the Hague Child Abduction Convention, you have the option of making an application for return of the child with the Federal Office of Justice, the German Central Authority. However, the application can also be made directly to the court or to the Central Authority of the country to which your child was taken.
There are also ways of resolving the conflict amicably that could be pursued. This may have particular relevance if it can be assumed that a child will return to their original place of residence, but the abducting parent will subsequently obtain permission to leave the country with the child. It is also possible that the conflict can be resolved by means of a reliable settlement of the right of access, since you as a parent are primarily concerned with being sure that you will not lose contact with the child in the future either.
Not in every case is a court order to have the child returned necessarily the solution that most reflects the best interests of the child or the needs of the parents.
More information about the various options is set out below. For further information, please do not hesitate to make use of our free, unbiased advice service.
Procedure
The aim of the Hague Child Abduction Convention is for an abducted child to return to the country in which they were last habitually resident as quickly as possible. This is based on the assumption that the return of the child to their familiar environment is in principle the best solution for a child. For that reason, the Convention provides for exceptions stopping a return only in narrowly defined cases. In many countries, these obstacles to return are applied very restrictively by the courts.
After the return to the country in which the child lived with one or both parents (or other persons with custody rights) before the abduction, a decision may be taken on who is entitled to which parental rights.
Applying
The application for a return of your child under the Hague Child Abduction Convention is submitted to the Central Authority. In Germany this is the Federal Office of Justice in Bonn. From there your application will be forwarded to the country to which your child has been abducted, whereupon the Central Authority there will take the necessary steps under local law.
Note the time limit for an application
Should you decide to submit an application for return, you must do so within one year of the abduction. If more than a year has elapsed since the abduction, a return is excluded if the other parent can demonstrate that the child has now settled in their new environment.
Costs
Neither the German Central Authority nor the relevant foreign Central Authority charges a fee.
Costs must usually be factored in for:
- formally required translations of applications, notifications and other documents, although an exemption from translation costs is possible under certain conditions (“legal aid”);
- (in many states) court and legal fees.
More information about the Hague Child Protection Convention can be found under Legal principles explained in brief.
There is no obligation to contact the Central Authority of the country from which your child was abducted. As the parent left behind, you can also get in touch with the foreign Central Authority. An alternative possibility is to petition a court in the other country directly for the return of the child.
We would like to give you the following advice on this:
- Check thoroughly whether it is necessary to engage a local lawyer.
- Court proceedings take time and usually money. It is not easy to predict the duration and costs, particularly in what may be a strange country for you. In addition, long-lasting court proceedings in particular can also often cause (further) mental distress – for you as parents and for your child.
In many cases we will encourage you to consider an out-of-court solution in addition to the Hague Convention, in other words reaching an amicable agreement. Despite the immense emotional distress it entails, this is still possible after a child has been abducted. We would certainly advise doing so, but it will certainly not be easy.
Like other affected parents, it may seem to you inconceivable to even sketch out a solution that can be agreed with the other parent. Nevertheless, try to keep this in mind: it is primarily about the welfare of your child – not about enforcing your own rights.
Further information on how you can manage a highly escalated situation without going to court is provided in the section on resolving conflicts.
Reaching agreement after submitting the application for return
Even within proceedings initiated under the Hague Child Abduction Convention (also called THC 1980 proceedings), it is still possible to reach agreement before a judge decides on the case. Many courts offer voluntary mediation in the proceedings. Alongside the question of whether and under what conditions a child returns, which parent sees the child when, how often and where and the extent to which maintenance is paid can also be discussed.
If a common arrangement can be agreed, this will be taken up by the court and put into a form that makes the agreement effective and enforceable as far as this is possible. Since the agreement should also be effective in another country, it makes sense to ensure this from the start. Whether arrangements that extend beyond the return of the child and cover access or maintenance as well, for instance, are enforceable should also be examined on a case-by-case basis.
If parents are unable to reach agreement in this mediation within a time frame determined in advance, the court will decide on the return of the child.
Your child has been abducted to a country in which the Hague Child Abduction Convention does not apply
In those countries which have not acceded to the Hague Child Abduction Convention, there is no procedure regulating the return of a child by means of a Central Authority. These include some African countries and many of those with an Islamic legal system, also called “non-Contracting States”. Parents whose children have been abducted to these countries have fewer options for action: the legal path, particularly an action brought locally, and the out-of-court negotiation of an amicable solution.
In the absence of a regulation of international law, parents must apply directly to the courts in the country in which their child is located and demand the handing over of the child. This generally entails protracted proceedings, frequently disputes about custody.
Your rights, the proceedings and the decision will then be governed by local law. The handing over of the child requires either the recognition and enforcement of a decision that was given by a judge elsewhere or a first-time regulation.
Important: Before travelling to the country in which your child is located, seek support and get as much information as you can. This also includes the question of whether the other parent could prevent you, if you are married, from travelling out of that country again.
For more about court solutions, click here.
Specialist lawyers abroad can be found in our directory as well as in the country information provided by the German Foreign Office or international associations of lawyers
Given the protracted and uncertain nature of legal proceedings, in cases of abduction where a return under the Hague Child Abduction Convention is not possible the focus shifts instead to seeking an agreement between the parents. The opportunities and challenges of an amicable arrangement and the points to be considered depend largely on the countries concerned and the particular circumstances.
We would be happy to talk to you about this in a face-to-face consultation.
Our experience shows that there is scope for negotiation, and possibly the chance of the child being returned voluntarily, if the abducting parent gets in touch after taking the child and the parents are at least still in contact. It sometimes turns out that concessions can lead to the abducting parent eventually considering a return or handing over of the child.
What to do if one’s own child is abducted can vary greatly from person to person. Some mothers or fathers may get into a state of shock following the abduction of their child. Others realise that the legal options are often limited. In blind panic, they try anything and everything. Whatever your own particular situation, talk to us.