Hague Abduction Cases

M (Children) (Abduction: Joinder of Children) [2021] EWHC 635 (Fam) (22 January 2021) (England and Wales)

The two older of four children, subject to their Father’s request to return them to Canada from England under the Hague Abduction Convention, were joined in the case. They objected to being returned to Canada if their Mother did not return. The two older children were appointed a solicitor and guardian. Children are not permitted to be joined in a Hague Abduction return proceeding without a guardian. The judge considered appointing the Cafcass Officer as the guardian, but she objected out of concern that it would be difficult to work with the older children’s legal team in that they had been highly critical of her report. Therefore, the children’s solicitor, James Netto, was also appointed as their guardian.

Ciccone v Ritchie (No 1) [2016] EWHC 608 (Fam) (03 February 2016) (England and Wales)

The teenage child (15 years, 4 months) is the subject of a return request from England to the United States under the Hague Abduction Convention. He was joined in the case and given party status. The child expressed a desire to not return to the United States, and did not wish to have his views filtered through a Cafcass report. The child had been actively involved, through counsel, in litigation in New York and mediation in London. By obtaining party status, the child could participate fully in discussion and negotiation to craft any outcome. The parents debated whether the child’s retention of solicitors was merely a proxy for his father. Acknowledging there are three traditional ways to include a child’s voice – a judicial interview, an interview by a Cafcass Officer, and independent legal counsel – the court stated, “whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.” … There are also disadvantages. “The intrusion of the children into the forensic arena, which enables a number of them to adopt a directly confrontational stance toward the applicant parent, can prove very damaging to family relationships even in the long term and definitely affects their interests.” The child’s counsel presented the following question, “were this court to decide to order [the child’s] return to the jurisdiction of the State of New York, having denied [his] request to participate as a party to that decision, could the court legitimately expect [the child] to accept that decision, to respect it and to co-operate with it?”

Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 (England and Wales)

Three children were subject to a return request from England to Ireland under the Hague Abduction Convention. The trial court ordered the return of the children to Ireland, over the child’s objection exception. The children’s 16-year-old brother met with a solicitor and the eldest child, and sought permission of the Court of Appeal to join the children for the first time in the Court of Appeal case. Even if the children are not parties in the trial court, they can bring their own appeal, and be joined as parties for the first time at the appeal stage.

Sanchez v. RgL, 761 F. 3d 495 – Court of Appeals, 5th Circuit 2014 (United States)

Three children, subject to a request for asylum in the United States, appealed a return order under the Hague Abduction Convention. As part of the appeal, the Court addressed whether the children should be permitted to intervene or be granted a guardian ad litem. “Children are not usually parties to Hague Convention proceedings, though nothing in the Convention expressly prohibits a court from allowing children to intervene. The First Circuit has stated that some cases, but not “very many,” may warrant a child’s formal representation in a Hague Convention proceeding. See Walsh v. Walsh, 221 F.3d 204, 213 (1st Cir.2000). District courts have sometimes allowed children to participate through guardians ad litem when their interests were not adequately represented by either party. See Danaipour v. McLarey, 286 F.3d 1, 8 (1st Cir.2002) (noting that the district court appointed a guardian ad litem); Lieberman v. Tabachnik, 2007 WL 4548570, *2 (D.Colo. Dec. 19, 2007) (appointing a guardian ad litem). Granting the children representation in appropriate situations is consistent with the Supreme Court’s view that “courts can achieve the ends of the Convention and ICARA — and protect the well-being of the affected children — through the familiar judicial tools….” Chafin, 133 S.Ct. at 1026-27.”

Lieberman v. Tabachnik, 625 F.Supp.2d 1109 (2008) (United States)

The trial judge appointed an attorney as “Guardian Ad Litem” to represent the parties’ three minor children in the Hague Abduction lawsuit pending in federal court in Colorado. When the judge issued the order specifically appointing the GAL, it included the following duties: “(1) to investigate all aspects of the social background of each of the minor children by talking to the Petitioner, Respondent, the minor children, reviewing court records from legal proceedings in Mexico and engaging in any further fact inquiry or investigation that the Guardian Ad Litem deems appropriate; (2) to investigate Respondent’s allegations of abuse, mistreatment of each of the minor children for the purpose of determining if Respondent’s allegations are accurate, truthful and verifiable; (3) to provide facts, evidence and recommendations, as to each child, concerning whether returning said child to Mexico would expose him or her to a grave risk of physical or emotional harm or otherwise subject the child to an intolerable situation; and (4) to investigate the wishes of the children and their respective maturity levels (to the extent that these issues relate to exceptions within ICARA) and make appropriate recommendations on this point.” 

Kufner v. Kufner, 480 F.Supp.2d 491 (2007) (United States)

A father sought the return of his two minor children from the United States to Germany using the Hague Abduction Convention. The trial judge appointed an attorney for the minor children and tasked the attorney with providing recommendations to the court on the types of evidence and evaluations that would be helpful to the judge. She recommended that the court obtain an expert opinion on some of the photographic evidence from a professional who had special experience and clinical training in evaluating or investigating sexual abuse of children. She also recommended the role her child clients should play in the proceedings, and, after her interview with the children, took the position that more involvement of the children in the proceedings would be significantly harmful. She recommended that they not be brought into the proceeding before the court, either to be interviewed or testify.

Diaz Arboleda v. Arenas, 311 F.Supp.2d 336 (2004) (United States)

The trial court appointed a lawyer to represent the three minor children in their father’s request using the Hague Abduction Convention to return them from the United States to Colombia. The Guardian Ad Litem provided a report that including information as to the child’s settlement in New York, and their objection to returning to Colombia. The court also interviewed the two older children in camera and read a letter provided to the court by the youngest child.