Parental Kidnapping and the Hague Convention, Part 1

As Joshua and Sharyn Hakken now sit in custody, awaiting trial on multiple felony counts, one thing has become abundantly clear: the Hakken family history is a troubled one.

The Hakkens – parents of two young sons – lost custody of their children after Louisiana police found the young family ensconced in a motel room surrounded by weapons and illegal drugs. The police thought the parents were behaving abnormally and took the kids into the state’s custody.

And so the great machinery in place to terminate parental rights began to move against the Hakkens.

But instead of combating the allegations of abuse and neglect properly – in court, aided by competent counsel – the Hakkens took a slightly more direct approach. Joshua Hakken even attempted to take the kids by force once before, showing up at a foster home armed with a weapon, before fleeing the scene after the foster parents called the police.

When the children were then placed in the care and custody of their maternal grandparents, the Hakkens apparently conceived of a desperate plan – a plan that they put into place several days ago when they once more attempted to take back custody of their kids by force.

This time, they were successful. Joshua Hakken allegedly broke into the grandparents’ home, tied up the grandmother, and fled again –this time, with his sons. Despite national BOLOs (“Be On the Look-Out” requests from law enforcement agencies) and Amber Alerts, the Hakkens weren’t found for days.

The entire Hakken family was finally spotted – on the beaches of Cuba, of all places. The Hakkens had abducted their own kids via a sailboat called the Salty Paw. Cuban authorities took the family into custody and returned them to U.S. authorities.

Thankfully, the Hakken children are safe and sound, and back in the custody of their grandparents. Their parents, on the other hand, are in jail without bond, awaiting trial on multiple felony counts, including kidnapping and assault.

As many U.S. parents (and parents all over the world, to be sure) have discovered, when a child is kidnapped by a non-custodial parent and taken to a different country, such speedy reunions are all but nonexistent. It doesn’t take days – it takes weeks, months, even years, and that’s only if it happens at all.

One source of international law, however, is in effect to assist parents whose children are victims of international parental abduction.

The Hague Convention: History and Overview of Its Provisions

Its full and formal name is the Hague Convention on Civil Aspects of International Child Abduction, to distinguish it from other “Hague Conventions.”

The overarching purpose of the Convention is to preserve the status quo – whatever custodial and access provisions were in place and in force immediately prior to any wrongful abduction or event that constitutes interference with custody, or interference with access to the child/children.

The Convention does not provide any new substantive rights, nor does it validate any particular country’s existing substantive provisions pertaining to custody or visitation matters.

Instead, the focus of the Convention is on procedural mechanisms to speed up the return of children who have been kidnapped or abducted and taken across international borders.

Signatory Countries to the Hague Convention’s Provisions

As of December 12, eighty-nine countries (including the United States) are signatories to the Convention’s provision.

The most recent additions to the list of countries in which the Convention is now in full force and effect are Guinea and Lesotho (a small country in Africa) in 2012, and South Korea in 2013.

Speedy resolution is a key aim of the Convention’s provisions. Member countries – and, by extension, their judicial and law enforcement bodies and agencies – agree to move “expeditiously” through their standard proceedings whenever a wrongful abduction takes place.

Further, each member country must move to conclude those proceedings with a final determination of rights and remedies no later than six weeks following the date the proceedings were commenced.

The Convention’s Definition of “Wrongful"

The Convention’s procedural protections come into effect whenever the removal of a child is deemed “wrongful.” Here’s what the Convention says in defining “wrongful” removals:

a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. …

… From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is … wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise.

Coming Up in Part Two: What to Do If It Happens to You

In the next post, we’ll explore more about the Hague Convention’s provisions that can help parents coping with the nightmare of international child abduction.

I’ll also offer some suggestions on what to do in the (hopefully unlikely) event that it happens to your family.