National and international child abduction

The phenomenon of international family child abduction normally arises when the marital union (or the partnership) gets broken: this new situation is often perceived and lived as an actual war and can lead to a tremendous impact on the physiology of children.

In this situation a fight for the children custody is likely to arise and in some cases it may result in a "kidnapping" performed by one of the two parents.

This "kidnapping" is more commonly called "child abduction".

Family child abduction indicates the act through which a parent, without the consensus of the other parent and with a unilateral decision, withdraws one child from the control of the other parent with the goal of hiding and keeping the kid with him/herself for an undetermined period of time.

The illegal transfer of the child towards a Country different from the one where the child used to have his/her normal residence leads to different consequences/situations depending on the legal status of the family at the moment of the abduction (family court could have already issued one or more enforcements on the concerned family):

• the parent from whom the child has been abducted is the one holding the minor’s custody by legal enforcement;
• the same parent (from whom the child has been abducted) is the one managing the minor’s custody in the daily practice without a formal legal assignment;
• the parent responsible for the abduction, in a phase prior to the actual family split, transfers the child abroad (normally in the Country of origin) in order to build a favorable surrounding situation aimed at facilitating the achievement of the minor’s custody.

Moreover, the abduction can take place even after the enforcement of the family court about the minor’s custody: in this case the parent without the custody right would more likely transfer the minor into a Country where the mentioned enforcement has no effects.

In other cases the minor is transferred in a Country where a decision on custody favorable to the parent who implements the abduction has been previously obtained (a decision that is clearly in contrast with the one - previously mentioned - taken in the Country of residence of the minor).

Moreover there could be a situation where the minor is held by the parent who doesn’t have the custody rights in a foreign Country for a longer period than the one legally suitable or longer than the one decided by the court or agreed by the two parents.

These cases are known as missing return of the minor. At international level there are several juridical tools (unfortunately not recognized by all the Countries) that allow to the parent who is "victim" of the child abduction to seek a formal and legally recognized solution to the illegal transfer:

• Hague Convention 1980
  (pdf version - 43KB)
• Council Regulation (EC) No 2201/2003
  (pdf version - 223KB)
• European convention on recognition and enforcement of decisions concerning custody of children and on restoration or custody of children (pdf version - 124KB)
• Convention on the Rights of the Child, 20 November 1989
  (pdf version - 114KB)

On top of the custody-related assumptions previously described, the applicability of L’Aja Convention and the implementation of the "repatriation" towards the Country where the minor had his/her usual residence when the abduction was performed, is valid within two assumptions: the child must be younger than 16, the legal action has to start no later than one year after the actual abduction, the repatriation shouldn’t harm the minor neither from a moral nor from a material stand point and should fully respect the rights of the child.

Nevertheless there are several practical tools that the parent victim of the child abduction can (must) use or activate both after and (if possible) before the abduction (in order to minimize the probability of an abduction).

As above described understanding the international child abduction means to understand that minors contended within parents of "mixed couples" (married or not married) are contended from parents that have not only different nationality but often different culture, religion, tradition and juridical references.

Child abduction not only prevents the minor from the natural relationship with one of the two parents but it also means a sharp change of the daily context in which he/she was living that represents not only the "natural residence" but also the only leaving place known to him/her.