[Updated on October 29, 2021]
Q) I am a US citizen who married a Korean wife. We moved to California 5 years ago. This year, she suddenly left and refused to return home with our son. It has been 3 months but she flat out denies my right to be with him. I am not abusive nor have I ever been violent towards her or our son. I have already sent in my Hague Child Abduction Convention application to the U.S. State Department to start the Hague process. I would like to know if your firm has handled Hague cases for International Parental Child Abduction.
South Korea Is a Contracting Nation to Hague Child Abduction Convention
On December 13, 2012, South Korea had become the 89th contracting nation to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”, please refer to our previous article).
Hague Child Abduction Convention aims to secure the prompt return of the children. The subject of the Convention is a child under the age of 16 who was wrongfully removed or retained from his country of habitual residence.
Our office had dealt with the first Hague international child abduction case at the Seoul Family Court. And we succeeded in getting the child back to her habitual residence. (The case was settled by the respondent’s voluntary return after we had filed an application with the court)
Countries of Acceptance of Accession
First, you should check whether there exists an acceptance of accession between South Korea and your country. Below are the countries that the Convention has come into force with South Korea as of July 2020.
U.S.A., Canada, China, Japan, Australia, New Zealand, Netherlands, United Kingdom, France, Spain, Germany, Italy, Portugal, Switzerland, Belgium, Sweden, Austria, Denmark, Finland, Greece, Hungary, Mexico, Russia, South Africa, Armenia, Serbia, Uruguay, Seychelles, Ireland, Czech, Andorra, Uzbekistan, Nicaragua, El Salvador, Argentina, Montenegro, Lithuania, Ecuador, Dominica, Bosnia, Herzegovina, Gabon, Paraguay, Belarus, Venezuela, Peru, Ukraine, Moldova, Cyprus, Croatia, Slovakia, Luxembourg, Romania, Chile, Brazil, Estonia, Bulgaria, Latvia, Slovenia, Poland, Malta, Georgia, Belize, Colombia
File a Child Return Application with Seoul Family Court
The mechanism of the child return under the Hague Child Abduction Convention is in 2 ways. The central authority, usually a government department of each contracting state, provides assistance in securing the return of the abducted child. The judicial authority of each contracting state, usually a court, issues a return order.
The central authority of South Korea is the Ministry of Justice, and the judicial authority is the Seoul Family Court.
Your Government Agency Cannot File the Application on behalf of You
Some people misunderstand that when they file an international child abduction report or assistance application with the U.S. State Department, the Department will take care of the actual application at the Korean court. That is not the case. What the central authority can do for you is just an assistance. For example, they help to locate the child and provide relevant legal information about the foreign country.
File Promptly
We advise our clients to file the application as promptly as possible.
Some people delay the filing while hoping the central authorities of both countries can bring back the child. However, the government agency’s assistance is quite limited and often takes so much time to make any results. What they can do is actually what the Korean court can do.
The more time you take, the more likely that the taking parent asserts a defense that the child has settled in a new environment. And this also delays the court review, too.
Therefore, once you confirm your partner’s child abduction, it is best to file the application right away.
Finding the Taking Parent’s Address in Korea
Now you know the taking parent and the child are located in South Korea. Your lawyer, however, needs to provide the Korean court with the exact address where they can serve the taking parent.
When you don’t know the actual address of the taking parent, your Korean lawyer can find the address. The lawyer can get a court’s disclosure order to look into various records of the taking parent and child. This may include the Korean certificate of the family relation, Korean resident registration. And the court allows the disclosure of private information. This may include the customer information of mobile companies, commercial banks, and hospitals. In our recent case, we found the address of the taking parent by looking at her personal records on Korean national health insurance.
Prepare Court Argument
The main issue in a Hague international child return case is (i) whether you have custody over the child and (ii) whether your child was removed or retained from the country of a habitual residence.
Right of Custody
First, you have to prepare a court document that proves that you are the custody holder. It doesn’t matter whether your custody right is exclusive or shared.
If you don’t have a court order, which would be common for many couples who haven’t completed a divorce or custody proceedings, preparing a local statute that explains that you have custody right.
The meaning and effect of the custody are interpreted by the law of the habitual residence.
For example, the Seoul Family Court had ruled that shared physical custody arrangement under the law of Texas is custody right under the Convention. The reason behind this is simple. The Convention says the right to determine the habitual place of the child is a custody right. The parties agreed in Texas that the mother shall have the primary physical custody and the father will have visitation. The parties further stipulated that no one can remove the child from Texas without the consent of the other party.
Similarly, the U.S. Supreme Court’s Abbott v. Abbott held that a ne exeat right is custody right under the Convention. In this case, the Chilean law gave a father only visitation right along with a ne exeat right, but the return to Chile was ordered.
It is notable that Korean courts admit the case laws from foreign courts as a supportive and persuasive source of legal reasoning.
Habitual Residence
The habitual residence is decided by the totality of circumstances. If the taking parent denies the habitual residence, you can prove it by the school records, immigration records, and anything relevant.
It is very common that the taking parent argues she got consent from the other parent regarding taking the child to Korea. Although the burden of proof is on the taking parent’s side, it is a good practice to prepare relevant evidence in advance. Reporting the abduction promptly to the local police is highly advisable. When dealing with the taking parent, you should be diligent in expressing your objection to taking the child out of your country.
When you are represented by a Korean lawyer, your lawyer will take care of this. Also basically you don’t need to come to the Korean court to participate in the court hearing. The Korean judge could order your presence, but that is very rare.
Minimize the Best Interest of Child Review
When you file a child return application with the Korean court, we are almost certain that the taking parent will make an argument that returning the child to the home country is against the best interest of the child. Sometimes this defense will be led to the allegation of domestic abuse, financial incapacity, and the time-lapse.
However, it is notable that the Hague Child Abduction Convention’s role is not to decide who is a better parent or who shall have the custody right. The Convention returns the child to his home country and has the court there decide the custody matters.
Article 19 of the Hague Convention clearly says this. It provides that a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
The Convention acknowledges 6 grounds for refusal of return of child whereby the court may deny the child return application. The legal counsel of the opposing party often tries to mix this defense with custody issues. The court, however, should not touch the custody issue. And the defense that the Convention provides should be interpreted narrowly because the best interest of child analysis could delay the court’s review significantly. Even it could incapacitate the international scheme that Hague Child Abduction Convention had set down.
Grave Risk of Harm Defense
One of the most argued defense by the taking parent in Korea is the “Grave Risk of Harm”. Article 13(b) of the Hague Child Abduction Convention provide as follow:
The judicial authority is not bound to order the return of the child if the person which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Taking parents allege various child custody issues in connection with this clause such as domestic violence, alcohol problem, financial incapacity, and even the child’s settling into the new life in Korea.
However, as explained above, this grave risk of harm should be interpreted narrowly. The fundamental idea of the Hague Child Abduction Convention is that the prompt return of the child to his habitual residence and have the local court decide the custody matter serves the best interest of the child. Thus, although direct physical/psychological abuse to the child could be a valid defense, other types of allegations should not.
Case Laws from the European Court of Human Rights
Some litigators for the taking parent argues that the Korean courts should follow the interpretation of the European Court of Human Rights(“ECHR”). They argue that the ECHR had changed its view that the court must review every custody issue proactively before making a decision of child return(Neulinger).
However, it is incorrect to say that the Neulinger has become the principal standard of review of the ECHR. Rather, the ECHR later issued X. v. Latvia which confirmed that the prompt return of the child and restrictive interpretation of grave harm is the general rule of the Convention.
HCCH’s Guide to Good Practice
HCCH(Hague Conference on Private International Law)’s Guide to Good Practice has shown the same point of view that the grave harm clause must be interpreted restrictively. Here are some quotes from the Guide to Good Practice:
a. Economic or Developmental Disadvantages to the Child upon Return
“Where assertions of grave risk based on economic or developmental disadvantages upon the return of the child are made, the analysis should focus on whether the basic needs of the child can be met in the State of habitual residence. The court is not to embark on a comparison between the living conditions that each parent (or each State) may offer. This may be relevant in a subsequent custody case but has no relevance to an Article 13(1)(b) analysis.[mfn]See No de pourvoi 08-18126, 25 February 2009, Cour de cassation (France) [INCADAT Reference: HC/E/FR 1013] where the Court rejected the taking parent’s arguments that it should compare the living conditions of the children at the time with their living conditions in the event of their return to evaluate grave risk.[/mfn] More modest living conditions[mfn]Y.D. v. J.B., [1996] R.D.F. 753, 17 May 1996, Superior Court of Quebec (Canada) [INCADAT Reference: HC/E/CA 369] where the taking parent argued that the financial incapacity of the left-behind parent would lead to the children facing a grave risk but the Court ruled that financial weakness as such was not a valid reason to refuse to return a child[/mfn] and/or more limited developmental support in the State of habitual residence are therefore not sufficient to establish the grave risk exception”
“If the taking parent claims to be unable to return with the child to the State of habitual residence because of their difficult or untenable economic situation, e.g., because his / her living standard would be lower, he/she is unable to find employment in that State, or is otherwise in dire circumstances, this will usually not be sufficient to issue a non-return order[mfn]See, e.g., N. R. c. J. M. A. V. s/ reintegro de hijo, 28 February 2013, Corte Suprema (Chile) [INCADAT Reference: HC/E/CL 1318] where the Court found that the mere fact that a return could be difficult for a taking parent because of problems with finding a job was not enough to reasonably justify the taking parent’s refusal to return, and that such matters are further to be taken into account in custody proceedings[/mfn]”
b. Risks Associated with the Child’s Health
“In cases involving assertions associated with the child’s health, the grave risk analysis usually should focus on the availability of treatment in the State of habitual residence of the child, and not on a comparison between the relative quality of care in each State. A grave risk will typically be established only in situations where a treatment is or would be needed urgently and it is not available or accessible in the State of habitual residence, or where the child’s health does not allow for travel back to this State at all”
c. The Child’s Separation from the Taking Parent, Where the Taking Parent Would Be Unable or Unwilling to Return to the State of Habitual Residence of the Child
“Judicial decisions from numerous Contracting Parties demonstrate that the courts have only rarely upheld the Article 13(1)(b) except in cases where the taking parent cannot or will not return with the child to the child’s State of habitual residence”
Seoul Family Court’s Decisions
The Seoul Family Court had ruled that a financial incapacity cannot become a valid ground of grave risk of harm defense.
Also, the Seoul Family Court had ruled that even if 4 years and 9 months child and even 8 years 11 months child expressed their will not to return to their habitual residence country, they are not grown enough to express their will and the Korean court is barred from taking into account what those children say.
Filing a Kidnapping Charges in Korea?
There have been mixed views on whether a Hague child return case can make a criminal case in Korea. That was because it was a strong view of the Korean Supreme Court that a child kidnapping can be established only when one side of the parents has used force or deceit in taking the child away from the other parent. Thus, in Hague Child return cases, many lawyers in Korea understood that taking a child without force or deceit cannot constitute kidnapping.
However, there has been a change in the legal landscape of Korea. In September 2021, the Supreme Court, the highest court of Korea, held that the Korean parent’s act of taking a child to Korea from France in accordance with the visitation schedule but refusing to return the child to her home country by violating the visitation terms constitutes a kidnapping under Korean criminal law.
So, if you are in a similar situation, you may file kidnapping charges with the Korean police.
Non-Convention Case
When a child is abducted to Korea from a non-convention country, you may still file a child return application with the Korean court based on the Korean family law or your local law. The process is quite similar to those in the Hague Child return case except the jurisdiction of the court.
For further information, please contact us by clicking here.
Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations.
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