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The term international child abduction is generally synonymous with international parental kidnapping, child snatching, and child stealing.[1] However, the more precise legal usage of international child abduction originates in private international law and refers to the illegal removal of children from their home by an acquaintance or family member to a foreign country. In this context, "illegal" is normally taken to mean "in breach of custodial rights" and "home" is defined as the child's habitual residence. As implied by the "breach of custodial rights," the phenomenom of international child abduction generally involves an illegal removal that creates a jurisdictional conflict of laws whereby multiple authorities and jurisdictions could conceivably arrive at seemingly reasonable and conflicting custodial decisions with geographically limited application. Such a result generally destroys a child's access and connection to half their family and, oftentimes, causes the loss of their former language, culture, name and nationality and violates an array of children's rights, in addition to causing severe psychological and emotional trauma to the child and family left behind.[2]

There is a common misconception that because the abductor in these cases is usually not a stranger the children are not in danger. Numerous and extensive studies have shown significantly harmful consequences for children and families victimized by a family abduction and show child abduction to be an extreme form of parental alienation and child abuse.[3] Adding international dimensions to the detrimental effects of child abduction significantly increases the detrimental effects on children and families. The modern day ease of international travel and corollary increase in international marriages is leading to a rapid rise in the number of international child abductions.[2]

Origin of the term

Prior to the 1970's there was no widely adopted name to denote the various actions and situations that are recognized today as international child abduction. Terms such as "legal kidnapping" or "legalized kidnapping" were used in some of the literature discussing the phenomenon, as such behaviors were becoming increasingly common in countries like the US and Canada with multiple states and provinces with distinct legal systems and jurisdictions, but these concepts had no counterparts at the international level. Discussions at the Hague Conference on Private International Law noted that legal kidnapping was an oxymoron since that which is legal cannot be kidnapping and that which is kidnapping cannot be legal. The response to these concerns was the coining of the term "international child abduction." The terms first prominent use was in the title of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Though, it's interesting to note, the term is not used anywhere in the text of the Convention itself in preference of the more technical terms "wrongful removal" or "wrongful retention" which were better suited for describing the mechanics of the Convention's system[4]. At the time of this treaty's adoption the term was not found in the index of any treatise. Today it would very difficult to find a modern treatise on family law, conflict of laws or private international law that does not have in its index, or table of contents, the terms "child abduction" or "international child abduction."[5]

Internationalization of Family Law

In all family law disputes a determination must be made as to which legal systems and laws should be applied to the dispute. This question becomes orders of magnitude more complicated when aspects, or parties, of the case occur in, or hail from, multiple legal jurisdictions.

Today's international family law norms were heavily influenced by the concepts of domicile and nationality. In Europe these ideas were refined during the nineteenth century by Italian politician, Pasquale Mancini, who believed matters of personal status were to be governed by the nationality of the person. During the same period in the US and Latin America the prevailing principle was that jurisdiction over personal matters was determined by domicile which, in the Americas, was acquired immediately upon moving to a foreign jurisdiction even if neither citizenship nor nationality were acquired.

Starting in the late eighteenth century until the early 1920s a number of efforts were made to develop a series of international treaties governing international conflicts of law in Europe. Treaties that favored nationality as the determining jurisdictional factor either never got of the ground, were not widely signed or had substantial practical problems with countries renouncing them after signing. At the same time the inter-American system in Latin America produced the Bustamante Code of 1928 and the Montevideo Conventions of 1939 and 1940. Of particular note in these later Conventions was the introduction of a definition of "domicile" that started with a reference to the "habitual residence" for civil status. Lessons learned in prior efforts to create successful multilateral treaties culminated in a number of successful treaties in the mid-1900s, such as the 1961 Convention on the Protection of Minors, the New York Convention of 1956 on the Recovery Abroad of Maintenance drafted under the auspices of the United Nations, and the Hague Convention of 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors ("1961 Convention.")

The 1961 Convention brought an innovation in terminology by creating a compromise between advocates of "nationality" as the determining factor for jurisdiction and advocates for the modern fact-centric model of "habitual residence." It also included expanded language to encompass both judicial and administrative authorities in response to the Boll case, in which Sweden claimed its public administrative law was exempt from the 1902 Convention on the Guardianship of minors because it only governed domestic private judicial law and not public administrative law. The 1961 Convention also emphasized the concept of the "interests of the child" as a basis for authorities of the child's nationality to overrule the authorities of the child's habitual residence. Of particularly special note, the drafters of the 1961 Convention expressly considered a provision addressing the removal of a child from their habitual residence with an intent to evade rightful jurisdiction—primarily for child custody reasons. This first attempt to codify international child abduction failed due to an inability to agree on a definition or manner of describing the phenomenon, with a number of countries that adhered to the principle of nationality regulating personal child and family law unable to classify their nationals removing children from foreign countries to their home state as fraudulent evasion.

In actual cases of international child abduction, this lack of a specific provision on child abduction in the 1961 treaty resulted in countries regularly interpreting the "habitual residence" concept of the Convention in a manner that allowed parents to take children to a foreign country and immediately acquire "habitual residence." This allowed judicial forum shopping and created perverse incentives for removing children from their homes to foreign jurisdictions in order to game the family law system and obtain a more favorable custodial outcome than could be gained in the jurisdiction of the child's home.

In the 1970s, dissatisfaction with these results led to efforts to create conventions on the foreign recognition and enforcement of judgments to make it harder for courts to favor a parent solely because that parent is a national suing in his or her home state. Canada also proposed that the Hague Conference work on a Convention to address what it termed "legal kidnapping." The Hague received Canada's request enthusiastically and, inspired by a Swiss proposal originally submitted at the Council of Europe in 1976 coined a new term in international family law -- "international child abduction."[5] Although the problem of international child abduction was well understood, finding a way to address the problem in practice was exceedingly difficult, but the Swiss proposal had a solution that was elegant in its simplicity. Why not simply restore the status quo ante?

The Hague Convention on the Civil Aspects of International Child Abduction

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Hague Abduction Signatories

In 1980 the Hague Conference finally drafted a Convention to specifically address the problem of international child abduction, the Hague Convention on the Civil Aspects of International Child Abduction -- commonly referred to as the Abduction Convention. The Swiss idea of restoring the status quo ante after a "wrongful removal" or "wrongful retention" became a mainstay of the Abduction Convention. Under the Convention an application could be made for the return of a child who'd been wrongfully removed or retained so long as the applicant possessed rights of custody, and provided that those rights were being "actually exercised" at the time of the abduction. The concept of "actually exercised" in reference to custodial rights itself was an innovation in terminology. Having met these requirements a child was to be returned "forthwith" except in exceptional circumstances.[4]

Inspired by the Hague Evidence Convention and the Hague Service Convention's of '65 and '70, the Abduction Convention required the establishment of a single Central Authority in each country that would handle two-way communications with domestic courts, administrative agencies and foreign Central Authorities. Not only did the Abduction Convention establish Central Authorities that facilitated two way communications, but it also gave a whole laundry list of additional obligations to these new authorities. Each Central Authority is required to take "any and all actions" to secure the goals of the treaty and cooperate with other Central Authority's to do the same. All of these new obligations emphasized the need for international cooperation amongst state parties in achieving the objectives of the Convention.[5]

The United Nations Convention on the Rights of the Child

File:Flag of UNICEF.svg

Flag of UNICEF

Established in 1989 the Convention on the Rights of the Child reflected the growing international consensus that children be viewed as a subject of rights and not merely as an object of rights or of protective action. The UNCRC roused an unprecedented response with 187 countries ratifying it within seven years forming an essential backdrop in international children's law. Article 11 of the Convention explicitly requires State Parties to combat the illicit transfer and retention of children and promote the conclusion of bilateral or multilateral agreements or accession to existing agreements that do so, Article 35 stipulates that "States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction, sale or traffic of children for any purpose or in any form."[5]

The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures

The 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures is the third of the modern Hague Conventions on international family law, following in the footsteps of the Abduction Convention and the Adoption Convention. It is much broader in scope than the first two conventions and covers a wide range of civil measures related to the protection of children including: orders concerning parental responsibility and contact, public measures of protection or care, matters of legal representation and the protection of children's property.

The Convention has uniform rules determining which country's authorities are competent to take the necessary measures of protection. The Convention also determines which country's laws are to be applied and provides for the recognition and enforcement of measures taken in one Contracting State in all the other Contracting States. The co-operation provisions of the Convention provide the basic framework for the exchange of information and the necessary degree of collaboration between administrative authorities in the Contracting States. Reflecting an ever increasing emphasis on the need for international cooperation as an essential element in the success of these measures the Convention has a full chapter on cooperation consisting of eleven articles.[5]

Although initially slow to gain support and plagued with political problems, the number of states acceding to it has begun to grow.

Impact on society, families and children

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2007 Report Cover

As the result of the harmful effects on children, parental kidnapping has been characterized as a form of child abuse and an extreme form of parental alienation. Abducted children suffer emotionally and sometimes physically at the hands of their abducting parents. Many are told the other parent is dead or has abandoned them. Uprooted from their entire life, home, family and friends, abducted children are often even given new names by their abductors and instructed to hide their real names or where they used to live. Generally the abductor avoids mentioning the victim parent and waits for time to erase difficult questions, such as "When can we see mom/dad again?". These children become hostages. It is beyond their comprehension that a parent who truly cares and loves them cannot discover their whereabouts. Childhood cannot be recaptured. Abductions rob a child of their their sense of history, intimacy, values and morals, self-awareness, opportunity of knowing one's beginnings and the love and contact of extended family-- a loss virtually no child possesses the ability to protect themselves against.

Huntington (1982) lists some of the deleterious effects of abduction on child victims:

1. Depression;
2. Loss of community;
3. Loss of stability, security, and trust;
4. Excessive fearfulness, even of ordinary occurrences;
5. Loneliness;
6. Anger;
7. Helplessness;
8. Disruption in identity formation; and
9. Fear of abandonment.


Many of these effects can be subsumed by the problems relevant to reactive attachment disorder, stress, fear of abandonment, learned helplessness, and guilt.

The extended support systems of abducting and victim parents can become part of the dispute leading to a type of "tribal warfare" (Johnston & Campbell, 1988). Believing primarily one side of the abduction story, family, friends, and professionals in each parents individual country may lose their objectivity. As a result, protective concerns expressed by the abandoned parent may be viewed as undue criticism, interference, and histrionics preventing the victim parent from effectively relieving the trauma imposed on their innocent child by the abduction.[3]

History of international child abduction

Many commentators on the phenomenon of international child abduction have misconstrued the fact that the term "international child abduction" did not exist prior to the 1970's to mean that the problem itself did not exist or was not recognized until that time. This is simply not true.[citation needed] What is termed "parental kidnapping," "international child abduction," or simply "child abduction" today has existed as long as different legal jurisdictions and international borders have, just under different names, none of which achieved the broad acceptance or adoption of the terms parental kidnapping and child abduction. Lacking a common set of terminology or specifically designed laws to address the problem researchers on the history of child abduction must search for terms like "custodial interference," "family abduction," or, in cases where children were viewed more as property or objects than as individual subjects of rights, variations on theft, debt, smuggling and many more.[6]

Legal justifications for abduction

International law has generally recognized that there may be extenuating circumstances where a child abduction may have been necessary or justifiable due to extenuating circumstances. The 1902 Convention on the Guardianship of minors limited such considerations to strictly emergency situations. Starting with the 1924 Declaration on the Rights of the Child and the 1959 United Nations Declaration on the Rights of the Child there was a growing recognition at the international level of the shift in nation's domestic laws away from parental authority and towards an emphasis on protecting the child, even from their own parents.[5] This foreshadowed the 1989 UN Convention on the Rights of the Child and led to the establishment of exceptional circumstances in Article 13 of the Hague Abduction Convention where the removal of children would not be considered child abduction and allow the child to remain in their new country.[4][7]

Abduction Convention: "Grave risks of harm" and "intolerable situations"

The principal purpose of the Abduction Convention is to cause the prompt return of a child to his or her "habitual residence." In certain exceptional cases under Article 13b, the court's mandatory return obligation is changed to a discretionary obligation, specifically, "the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body 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." It is important to note that the duty to return a child is not abrogated by a finding under Art. 13(b) but merely changes from mandatory to discretionary. Since the general intent of the Convention is to cause the return of a child to his or her "habitual residence," unless there are some powerful and compelling reasons otherwise the court is normally and routinely expected to exercise its discretion and return the child to his or her "habitual residence".

In the primary source of interpretation for the Convention, the Explanatory Report, Professor E. Perez-Vera noted the following:

"it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."

In spite of the spirit and intent of the Convention as conveyed by the Convention itself and further reinforced by the Perez-Vera report, Article 13b is frequently used by abductors as a vehicle to litigate the child's best interests or custody. Although Article 13(b) inquiries are not intended to deal with issues or factual questions appropriate for custody proceedings, many countries use article 13b to request psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships.[8] These misinterpretations of the Abduction Convention's exceptions have rendered the Convention largely ineffective in accomplishing its objectives. The best interests of a child, which is explicitly never mentioned in the Convention, is an essentially subjective standard that judges often use to facilitate foreign nations' manipulation of the treaty and create a pretext for discretionary decisions. This discretion often takes the form of gender, cultural and national biases. The result is substantive non-compliance with the Abduction Convention.[9]

Domestic violence

Domestic Violence

Domestic Violence

At the time the Hague Abduction Convention was drafted domestic violence was never explicitly considered as an affirmative defense for child abduction. This deficiency is attributed to the drafters of the Convention not foreseeing that the child's primary caretaker would abduct the child to escape the domestic violence of a non-custodial parent. Part of this lack of foresight is attributed to the fact that, at the time of the Conventions drafting, joint custody laws were rare. One parent was usually both the custodial parent and primary caretaker while the other, non-custodial parent, had rights of access. The move towards joint custody laws conferred both the parent who acted as the primary caretaker and their ex-partner custodial rights and, by extension, a right to request the return of children wrongfully removed from their place of habitual residence. In addition to not accounting for a shift in child custody law towards shared parenting and joint custody, the framers of the Convention also did little to account for the motivation for abducting a child, generally assuming that all abductions were harmful to children when, in fact, the child's primary caretaker may be acting altruistically by fleeing with a child to protect themselves from a dangerous domestic situation.[10]

See also

References

  1. HON. WILLIAM RIGLER and HOWARD L. WIEDER (2000). "THE EPIDEMIC OF PARENTAL CHILD-SNATCHING: AN OVERVIEW". US Department of State. http://travel.state.gov/abduction/resources/resources_545.html. Retrieved 2010-09-24.
  2. 2.0 2.1 "2010 Compliance Report". Travel.state.gov. Archived from the original on 2010-05-28. http://web.archive.org/web/20100528014323/http://travel.state.gov/pdf/2010ComplianceReport.pdf. Retrieved 2010-05-23.
  3. 3.0 3.1 Parental Child Abduction is Child Abuse. Nancy Faulkner, Ph.D. Presented to the United Nations Convention on Child Rights in Special Session, June 9, 1999
  4. 4.0 4.1 4.2 "Hague Abduction Convention text". Hcch.net. http://www.hcch.net/index_en.php?act=conventions.text&cid=24. Retrieved 2010-04-20.
  5. 5.0 5.1 5.2 5.3 5.4 5.5 Adair Dyer. "The Internationalization of Family Law". US Davis Law Review. http://lawreview.law.ucdavis.edu/issues/Vol30/Issue3/DavisVol30No3_Dyer.pdf. Retrieved 2010-08-08.
  6. Richard K. Stevens. "The PK Papers". http://thepkpapers.com/. Retrieved 2010-08-08.
  7. Elisa Perez-Vera. "Explanatory Report". Hcch.net. http://hcch.e-vision.nl/upload/expl28.pdf. Retrieved 2010-04-20.
  8. William M. Hilton (1997). "The Limitations on Art. 13(b) of The Convention on the Civil Aspects of International Child Abduction done at the Hague on 25 Oct 1980". http://hiltonhouse.com/articles/Art_13(b)_limit.txt. Retrieved 2009-6-12.
  9. Leto, Marisa (2000-04-01). "Whose best interest? International child abduction under the Hague Convention". Chicago Journal of International Law. http://www.allbusiness.com/legal/1001334-1.html. Retrieved 2010-09-24.
  10. Merle H. Weiner (2000). "International Child Abduction and the Escape from Domestic Violence". Fordham Law Review. http://www.lclac.org/FordhamLawReview.htm. Retrieved 2010-08-21.

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