However, the term "child abduction" is to be used with caution as it is a legal concept and can exacerbate conflicts when used daily in a family context. The consequences of such an action will vary depending on the particular situation of each child. What is essential for the child, from a psychological point of view, is to know on what basis its relationship will continue with adult reference figures and if its environment, before and after "abduction ", is consistent with their needs and interests. For this reason child abduction and interests of the child can relate quite differently to each other from case to case.
All families can be affected by child abduction and nationality is usually not a determining factor. However, the increase in international child abduction is associated with the increasing number of bi-national couples. To summarize, we can speak of international child abduction when a parent takes the child to another country without consent of the other parent (or parent exercising parental authority) or without having obtained a judicial decision.
Your marriage is going through a major crisis, you have been separated for a long time or have never lived with the mother/father of your child. You fear that your ex-partner will take and keep your child abroad.
In this case, ask yourself the following questions :
- Has the other parent ever threatened to take the child ?
- Does your ex-partner have another nationality ?
- Does your child have dual nationality or the same nationality as your ex- partner ?
- What is the social, family and professional network of your ex-partner in relation to their current place of residence, but also in their country of origin ?
What can you do as a preventive measure ?
- Maintain communication with the other parent - try at all costs to maintain the dialogue, avoid escalating the conflict and look for solutions. Some abductions can be prevented when parents are able to maintain or re-establish communication and confidence.
- In cases of conflict or when parents fail to reach an agreement, mediation can be useful, provided that both parents are ready to use such an approach.
- Do not oppose, without good reason, to regular contact of your child with the other parent. This can help to defuse the conflict and is also the child’s right.
- If necessary, accompany your child during their visits with the other parent abroad. When visitation rights pose a risk, you should consider legal action including:
- Interim measures with immediate effect that attribute exclusive parental authority or custody to one parent
- Holding Identification papers
- New regulations for visitation rights
- Geographical restriction for visitation rights or using a protected (meeting point) environment.
- Stay alert when the other parent changes behavior (eg: their views become more radical or increased contact with family in the country of origin).
- Make sure the identity papers of your children are kept in a safe place and keep them, if necessary, with friends or family members. Notify the passport office that no travel document shall be issued without your consent. If your children have your nationality and also that of your partner, they can possibly request new documents. Inquire or inform the representation of that country (consulate/embassy) that you do not agree to the issuing of new documents.
Your child has been taken to a State party to the 1980 Hague Convention
Child abduction from Switzerland in a State party to the Hague Convention on International Child Abduction
Switzerland has signed various international conventions such as the Hague Convention of October 25, 1980 on the civil aspects of International Child Abduction (1980 Hague Convention) and the European Convention of May 20, 1980 on the recognition and enforcement of decisions concerning parental authority over children and restoration thereof (EC 80). The Hague Convention (1980 Hague Convention) provides for the immediate return of children wrongfully removed or retained in another Contracting State against the wishes of the joint holder of parental authority.
The Federal Central Authority for international child abduction, attached to the Federal Office of Justice works with counterparts abroad to return a child as quickly as possible, or to allow the exercise of visitation rights (email@example.com ; www.bj.admin.ch).
The 1980 Hague Convention is applicable only between Contracting States. Its purpose is to protect the child, not to punish the parent who has perpetrated the abduction. Currently, Switzerland is linked to 90 states by the 1980 Hague Convention but the collaboration is far from satisfactory and many states are unable to meet the expectations of the applicant parent.
A procedure for the return of a child is engaged upon application by the parent who has had their custody rights violated. The convention states that the following conditions must be met :
- The child has not yet reached the age of 16
- Before removal, the child was a resident in Switzerland or in another Contracting State
- The applicant had single or joint parental authority before abduction
- Less than a year has passed since the abduction
All these conditions must be fulfilled to allow a request for a return to be submitted to the central competent authority abroad. It will then attempt to:
- locate the current residence of the child
- obtain the voluntary return of the child and, if this is not possible,
- take the necessary legal action to obtain the forced return of the child.
The procedure for return can, depending on the legal system of the requested State, be long and costly. Only a court can order the return of a child, which is by no means guaranteed. The central authorities of the countries concerned, having ratified the 1980 Hague Convention, cannot influence this decision.
Even if a procedure of return is underway, it may be in the interest of the child that the parents seek in parallel a solution through other means, eg with the support of the International Social Service network or through the intervention of specialists of international family mediation. In any case, it is essential that the child maintain contact with both parents throughout the duration of the procedure.
Depending on the individual situation and the country concerned, a procedure for return under the 1980 Hague Convention may either harden the conflict between the parents or provide a framework for negotiations. To help you choose the best options in the interest of your child, we recommend that you contact a professional to help you assess your situation. Our team at the International Social Service is at your disposal for any questions.
Your (ex-) partner has abducted the child in a state not party to the 1980 Hague Convention
Child abduction from Switzerland to a State not party to the 1980 Hague Convention
If your child has been abducted to a country that has not ratified the Hague Convention on International Child Abduction, the Swiss Central Authority is not competent. However, you have the ability to act in cooperation with the International Social Service network and, if the child is a Swiss citizen, with the embassies of Switzerland through consular protection in Bern.
What can you do :
See "In case of emergency"
You can file a charge for abduction of minors (art. 220 Criminal Code) or kidnapping and abduction (art. 183 and 184 Penal Code). Abduction is considered a perpetual offense, which means that a new charge may be made at any time and a new sanction requested until the abducted child has been returned. You can file the charge at a police station. A charge may serve as a means of pressure, but we recommend that you contact the Federal Office of Police to assess the possibility to obtain an international arrest warrant. However, one must never forget that your actions can either harden or defuse a conflict and thus have a direct impact on your child's situation. Keep in touch with your child in all situations whenever possible.
Recognition of Swiss decisions abroad
A parent who is a citizen of a country not party to the Hague Convention on international child abduction could attempt to obtain, in his country of origin, the custody of the children and ensure that no further relocation of the children could be done without their formal consent. A ban on leaving the country generally cannot be canceled by a Swiss court, even if a conviction of the parent who committed the abduction has been pronounced. If you already have a court order giving you parental authority, or joint authority, of your child, you can try to get the recognition of the decision in the country in which your child has been abducted. In this case, it is essential that you know the legal system of the country and it may be necessary for you to hire a lawyer there which will generate costs. Our experience has shown that it is very rare to get results in this way. If necessary, you can contact the Swiss representation abroad for a list of available lawyers.
Removal of child from abroad to Switzerland
When a child is abducted in a State party to the 1980 Hague Convention and taken to Switzerland, the Federal Act on International Child Abduction (FAICA) is applied. The FAICA provides that the Central Authority, or competent court, order mediation or conciliation (art. 4 and 8 FAICA). Also, a legal representative for the child must be appointed and will hear the child in person (art . 9). If you have removed the child from Switzerland, the next chapter also concerns you.
You have returned with your child in your home country without permission from the other parent
From a legal point of view, you have “abducted” your child if your (ex-) partner or the court has not authorized the departure. Your (ex-) partner can claim the return of the child by invoking the1980 Hague Convention on international child abduction. You also risk a criminal charge and international arrest warrant be issued, which exposes you to the risk of being arrested upon return to your country of origin.
Removal in a State party to the 1980 Hague Convention: proceedings under the Hague Convention on International Child Abduction
When you have lived in a state party to the 1980 Hague Convention and the other parent has made a return application, the Federal Central Authority shall file with the court having jurisdiction of your residence, an application for return of the child. The Central Authority represents the parent living abroad and generally refers to a lawyer for the procedure.
However, the other parent may demand the return of the child without resorting to the Central Authority by applying directly to the competent court.
The court of the country in which you took your common child, without the permission of the other parent, must order the return of the child, unless strict exceptions justify non return. These exceptions are defined in Article 13 of the 1980 Hague Convention. Thus, the return of the child shall not be ordered where there is a serious risk that the return would expose the child to physical or psychological danger or when the child objects to the return.
Return order / Forced return
A return order concerns only the child and not the abducting parent. When a return order becomes enforceable, the competent authority must ensure that the abducted child returns back to his former place of residence. The competent authority or person in the country concerned (in Switzerland: a cantonal authority, sometimes in collaboration with the police) will pick up the child at home or elsewhere, in the presence of the other parent or a child protection service employee.
To avoid this painful process for your child, it is generally better, in their interest, to return your child voluntarily. We are at your disposal to help you best organize the return and find a solution that allows you to maintain regular contact with your child.
Important : Your child has the right to maintain contact with both parents. We recommend that you allow contact between your child and the other parent throughout the proceedings.
Amicable Settlement / Mediation
In principle there is always a way to find an amicable solution, either outside or within the framework of a legal procedure (including a 1980 Hague Convention procedure). This is true even once a Hague procedure is over. Many courts offer ways (often through lawyers) to attempt mediation even during a legal procedure.
It is important that parents choosing mediation know their rights, duties and legal aspects of an agreement. It is therefore helpful that they ask a lawyer for advice and information especially in relation to the recognition and enforcement of mediation agreements from one country to another.