Study On American’s Implementing Of The Hague Child Abduction About Summary Return Mechanism

The purpose of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention) is to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access."Securing prompt return of child is the most important part of the Convention. This paper studies American’s implementing of the Hague child abduction about summary return mechanism. There are four chapters in this paper except for the forward and the concluding remarks.Section I of this article introduces the Hague Abduction Convention and the summary return mechanism which is legal basis for American to implement. The Hague Abduction Convention reflects on the whole a compromise between two concepts, different in part, to protect factual situations altered by the wrongful removal or retention of a child, and that of guaranteeing, in particular, respect for the legal relationships which may underlie such situations. There is no doubt that the characterization of the removal or retention of a child as wrongful which gives legal content to a situation modified by those very actions of abduction which is intended to prevent. From the designation of Central Authority, application of securing the return of child, prerequisites of the return of child, procedures of the return of child and exceptions of the return of child, this paper introduces the summary return mechanism under the Hague Abduction Convention. In addition to international legal basis, this section then explores American’s legislation on international child abduction and its implementing of the Hague child abduction about summary return mechanism. Being a party to the Hague Abduction Convention in1988, American then enacts a series of legislation on international child abduction, such as International Child Abduction Remedies Act, Uniform Child Custody Jurisdiction and Enforcement Act.Section Ⅱ of this paper then illustrates how the Hague Abduction Convention has been applied by courts in the United States to disputes involving contracting states from concepts of "habitual residence", wrongful removal or retention of a child, the application of summary return mechanism and exceptions to the summary return remedy. Section III of this paper identifies specific failures of application by courts in the United States under the Hague Abduction Convention and proposes legislative recommendations for better resolution of international child abduction cases and implementation of the Hague Abduction Convention. The legislation that implements the Hague Abduction Convention in the United States-ICARA confers concurrent state and federal court jurisdiction for cases brought under the Treaty. This vast jurisdictional grant has contributed to problems which frustrated the original intent of the Hague Abduction Convention. In addition, enforcement of orders for the child’s return in other contracting parties may also be difficult. For political or policy reasons, such orders are, in many instances, simply not enforced by the country in which they are entered. This paper suggests American should amend its legislation to grant jurisdiction of international child abduction cases to less courts in American and focuses on law-making to improve the enforcement of orders for the child’s return. The Hague Abduction Convention surely has failures in its implementation, yet Hague Conference on Private International Law and American’s efforts enlighten our country to deal with international child abduction from the legislative level. Clearly, international child abduction involves many countries which requires international collaborations. Becoming a party of the Hague Abduction Convention could be a good starting point to deal with international child abduction cases within China.