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Child Abduction

We're talking about child abduction when

  • one of the parents takes the child abroad or refuses to return the child to the other parent after a stay abroad (eg. vacation)
  • when parental authority is exercised jointly or solely by the parent from whom the child has been separated
  • and when the parent with (joint) parental authority did not consent to the move.

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.

There is fear that a/an (ex)partner will take the child abroad

One of the parents has already taken the child abroad

One of the parents has already taken the child to Switzerland

One of the parents has taken the child abroad without the consent of the other parent


There is fear that a/an (ex)partner will take the child abroad

The marriage is going through a major crisis, the couple has been separated for a long time or one of the parents has never lived with the child.  There is fear that an ex-partner will take and keep the  child abroad.

In this case, ask the following questions :

  • Has the other parent ever threatened to take the child?
  • Does the ex-partner have another nationality?
  • Does the child have dual nationality or the same nationality as the ex- partner?
  • What is the social, family and professional network of the ex-partner in relation to their current place of residence, but also in their country of origin?

What can be done as a preventive measure ?

  • Maintain communication between the parents – parents should be encouraged to try at all costs to maintain the dialogue, avoid escalating the conflict and look for solutions. Some abduction 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.
  • Promote regular contact of the child with both parents. This can help to defuse the conflict and is also the child’s right.
  • If necessary, the child should be accompanied during visits with one of the parents abroad. When visitation rights pose a risk, 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.
  • Parents should 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 the child or children are kept in a safe place and kept, if necessary, with friends or family members.  Advise parents to notify the passport office that no travel document shall be issued without their consent.  If the child has the same nationality as both parents, new documents can possibly be requested unilaterally. Inquire or inform the representation of that country (consulate/embassy) that they do not agree to the issuing of new documents.

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One of the parents has already taken the child abroad

The 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 (kinderschutz@bj.admin.ch ; 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.   

 

A/an 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 the 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, parents 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 be done ?

See "In case of emergency"

A charge for abduction of minors (art. 220 Criminal Code) or kidnapping and abduction (art. 183 and 184 Criminal Code) can be laid.  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. The charge may be laid at a police station. A charge may serve as a means of pressure, but we recommend that parents contact the Federal Office of Police to assess the possibility to obtain an international arrest warrant. However, one must never forget that their actions can either harden or defuse a conflict and thus have a direct impact on the child's situation.  Advise parents to keep in touch with the 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 a parent already has a court order giving them parental authority, or joint authority, of the child, they can try to get the recognition of the decision in the country in which the child has been abducted.  In this case, it is essential that they know the legal system of the country and it may be necessary for them 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, they can contact the Swiss representation abroad for a list of available lawyers.

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One of the parents has already taken the child to Switzerland

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 a parent has removed the child from Switzerland, the next chapter is relevant.

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The child has been taken abroad without the consent of the other parent

A parent has returned with the child to their home country without permission from the other parent

From a legal point of view, the parent has “abducted” the child if the (ex-) partner or the court has not authorized the departure.  The (ex-) partner can claim the return of the child by invoking the1980 Hague Convention on international child abduction. The parent also risks a criminal charge and international arrest warrant be issued, which exposes them to the risk of being arrested upon return to their country of origin.

Removal in a State party to the 1980 Hague Convention: proceedings under the Hague Convention on International Child Abduction

When a parent has 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 the 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 the child has been taken, 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.

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