A Hague Convention return proceeding is often viewed as a race against time. Most discussions focus on the obvious question: Will the court ultimately order the child’s return? Less attention is paid to a different race that may begin much earlier. It starts the moment the taking parent learns that proceedings have been commenced.
Two Separate Risks
The first obvious risk is the one every Hague Convention case is designed to address – that the child may not ultimately be returned to the country of habitual residence.
The second is more immediate.
A taking parent who learns that a Hague petition has been filed may decide not to wait for the court to determine the merits of the case. Instead, they may relocate with the child yet again – to another state or even another country – before the court has a meaningful opportunity to adjudicate the petition.
The practical consequence is obvious. A case that was already international may suddenly become considerably more complicated.
The Role of Service of Process
One of the earliest procedural challenges in any Hague return proceeding is ensuring that the respondent is properly served. That is often easier said than done.
Unlike an ordinary civil dispute, Hague Convention litigation frequently involves a parent who has already demonstrated a willingness to cross borders with a child. Locating the respondent may itself become difficult. Even where an address is known, personal service may not be straightforward. The law, however, does not permit courts to disregard procedural safeguards simply because the underlying dispute is urgent.
Personal service remains the preferred method of serving an individual. Although the precise rules vary by jurisdiction, courts are generally reluctant to authorize substituted or alternative service unless the petitioner demonstrates that personal service could not be accomplished despite diligent efforts and inquiry. What constitutes diligence is necessarily fact-sensitive. There is no formula. Rather, courts expect genuine, good-faith efforts to pursue available leads before concluding that personal service has become impracticable.
Equally important, the constitutional requirement of due process remains paramount. Whatever method of service is employed must be reasonably calculated, under all the circumstances, to apprise the respondent of the pendency of the action and afford an opportunity to be heard.
The Practical Tension
This creates an inherent tension in Hague proceedings. On one hand, the Convention contemplates the expeditious resolution of international child abduction cases. On the other, courts cannot dispense with procedural protections that ensure the respondent receives legally sufficient notice before judicial action proceeds. Meanwhile, time continues to pass.
In some cases, unsuccessful attempts at service may themselves alert the respondent that proceedings have commenced. Although the litigation may still be in its infancy, the respondent may already appreciate the significance of the petition.
If appropriate protective measures are not considered promptly, the very event the petitioner seeks to prevent, a further relocation with the child, may occur before the merits of the petition are ever reached.
Experience Matters
For that reason, obtaining emergency relief should never be viewed as the conclusion of the urgent phase of a Hague return proceeding. In many respects, it marks the beginning of it.
The period immediately following the commencement of a Hague petition often requires a series of strategic decisions that extend well beyond the substantive provisions of the Convention itself. Those decisions depend upon the particular facts of the case, the jurisdictions involved, and the procedural posture of the litigation.
International child abduction cases present unique procedural challenges. An attorney experienced in Hague Convention litigation understands not only how to litigate the petition itself, but also how to navigate the critical period before the court has an opportunity to decide it.