International child abduction
Encyclopedia
The term international child abduction is generally synonymous with international parental kidnapping, child snatching, and child stealing. 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 phenomenon of international child abduction generally involves an illegal removal that creates a jurisdictional conflict of laws
whereby multiple authorities and jurisdiction
s could conceivably arrive at seemingly reasonable and conflicting custodial decisions with geographically limited application. Such a result often strongly affects a child's access and connection to half their family and may causes the loss of their former language, culture, name and nationality, it violates numerous children's rights
, and can cause severe psychological and emotional trauma to the child and family left behind.
There is a common misconception that because the abductor in these cases is usually not a stranger the children are not in danger.http://www.missingkids.com/en_US/publications/kid_is_with_a_parent.pdf The harmful consequences for children and families have been shown in several studies and child abduction has been characterized as a form of parental alienation
and child abuse
. 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.
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
. The term is not used however 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. The use of the term is now widespread in international law.
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 Convention
s 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 incentive
s 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." 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?
drafted a convention to 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 had 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.
Inspired by the Hague Evidence Convention
and the Hague Service Convention
's of 1965 and 1970, 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. Furthermore, each Central Authority was 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.
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."
s 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.
Although initially slow to gain support and plagued with political problems, the number of states acceding to it has begun to grow.
. 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 also become part of the dispute. 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.
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. 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.
In the primary source of interpretation for the Convention, the Explanatory Report, Professor E. Perez-Vera noted the following:
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. 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.
for child abduction. This deficiency has been 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 caused by 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 with 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.
By country:
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
" and "home" is defined as the child's habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
. As implied by the "breach of custodial rights," the phenomenon of international child abduction generally involves an illegal removal that creates a jurisdictional conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
whereby multiple authorities and jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s could conceivably arrive at seemingly reasonable and conflicting custodial decisions with geographically limited application. Such a result often strongly affects a child's access and connection to half their family and may causes the loss of their former language, culture, name and nationality, it violates numerous children's rights
Children's rights
Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education,...
, and can cause severe psychological and emotional trauma to the child and family left behind.
There is a common misconception that because the abductor in these cases is usually not a stranger the children are not in danger.http://www.missingkids.com/en_US/publications/kid_is_with_a_parent.pdf The harmful consequences for children and families have been shown in several studies and child abduction has been characterized as a form of parental alienation
Parental alienation
Parental alienation is a social dynamic, generally occurring due to divorce or separation, when a child expresses unjustified hatred or unreasonably strong dislike of one parent, making access by the rejected parent difficult or impossible...
and child abuse
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
. 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.
Origin of the term
What is termed "legal kidnapping", "legalized kidnapping""parental kidnapping," "international child abduction," or simply "child abduction" today has existed as long as different legal jurisdictions and international borders have 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.Discussions at the Hague Conference on Private International Law
Hague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of 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
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
. The term is not used however 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. The use of the term is now widespread in international law.
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
Domicile
*In architecture, a general term for a place of residence or "permanent residence" in legal terms*Domicile , the zodiac sign over which a planet has rulership...
and nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
. 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
Bustamante Code
The Bustamante Code is a treaty written in Spanish that intended to establish common rules for Private International Law in the Americas...
of 1928 and the Montevideo Convention
Montevideo Convention
The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international...
s 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
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, 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
Boll case
The Boll case was heard before the International Court of Justice in 1958 and remains the only case in which a Convention drafted by the Hague Conference on Private International Law was the principal subject of interpretation by a court with worldwide jurisdiction.In Boll the Netherlands sued...
, in which Sweden claimed its public administrative law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
was exempt from the 1902 Convention on the Guardianship of minors
Hague Convention of 1902 relating to the settlement of guardianship of minors
Commonly referred to as the "Guardianship Convention", the Convention of 1902 relating to the settlement of guardianship of minors, along with the other Conventions in 1902, was the Hague Conference's first effort at addressing international family law. Within a few decades it was the only family...
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
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
and created perverse incentive
Perverse incentive
A perverse incentive is an incentive that has an unintended and undesirable result which is contrary to the interests of the incentive makers. Perverse incentives are a type of unintended consequences.- Examples :...
s 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
Hague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law....
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." 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
In 1980 the Hague ConferenceHague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law....
drafted a convention to address the problem of international child abduction: the Hague Convention on the Civil Aspects of International Child Abduction
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
- 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 had 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.
Inspired by the Hague Evidence Convention
Hague Evidence Convention
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters -- more commonly referred to as the Hague Evidence Convention, is a multilateral treaty which was drafted under the auspices of the Hague Conference on Private International Law. The treaty was negotiated in 1967 and...
and the Hague Service Convention
Hague Service Convention
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty which was signed in The Hague on 15 November 1965 by members of the Hague Conference on Private International Law...
's of 1965 and 1970, the Abduction Convention required the establishment of a single Central Authority
Central Authority
A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in private international law....
in each country that would handle two-way communications with domestic courts, administrative agencies and foreign Central Authorities. Furthermore, each Central Authority was 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.
The United Nations Convention on the Rights of the Child
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 ConventionHague Convention
The Hague Convention may refer to:* Hague Conventions , among the first formal statements of the laws of war and war crimes in international law...
s 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.
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
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 alienationParental alienation
Parental alienation is a social dynamic, generally occurring due to divorce or separation, when a child expresses unjustified hatred or unreasonably strong dislike of one parent, making access by the rejected parent difficult or impossible...
. 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
Reactive attachment disorder
Reactive attachment disorder is described in clinical literature as a severe and relatively uncommon disorder that can affect children. RAD is characterized by markedly disturbed and developmentally inappropriate ways of relating socially in most contexts...
, stress, fear of abandonment, learned helplessness
Learned helplessness
Learned helplessness, as a technical term in animal psychology and related human psychology, means a condition of a human person or an animal in which it has learned to behave helplessly, even when the opportunity is restored for it to help itself by avoiding an unpleasant or harmful circumstance...
, and guilt.
The extended support systems of abducting and victim parents can also become part of the dispute. 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.
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 minorsHague Convention of 1902 relating to the settlement of guardianship of minors
Commonly referred to as the "Guardianship Convention", the Convention of 1902 relating to the settlement of guardianship of minors, along with the other Conventions in 1902, was the Hague Conference's first effort at addressing international family law. Within a few decades it was the only family...
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
Declaration of the Rights of the Child
The Declaration of the Rights of the Child is the name given to a series of related children's rights proclamations drafted by Save the Children founder Eglantyne Jebb in 1923....
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. 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.
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
Best interests
Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
or custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
. 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. 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.
Domestic violence
At the time the Hague Abduction Convention was drafted domestic violence was never explicitly considered as an affirmative defenseAffirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
for child abduction. This deficiency has been 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 caused by the fact that, at the time of the Conventions drafting, joint custody
Joint custody
Joint custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents. In the United States, many states recognize two forms of...
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 with 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.
See also
- Hague Convention 1996Hague Convention 1996The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children or Hague Convention 1996 is a convention of the Hague Conference on Private International Law...
- Human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
- KidnappingKidnappingIn criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
- National Center for Missing and Exploited ChildrenNational Center for Missing and Exploited ChildrenThe National Center for Missing and Exploited Children is a private, non-profit organization established in 1984 by the United States Congress.-Establishment and overview:...
- Trafficking of childrenTrafficking of childrenTrafficking of children is a form of human trafficking. It is defined as the recruitment, transportation, transfer, harboring, or receiving of children for the purpose of exploitation....
- Hague Abduction Convention Compliance ReportsHague Abduction Convention Compliance ReportsThe Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Abduction Convention, is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken illegally from one...
- Not Without My DaughterNot Without My DaughterNot Without My Daughter is a film released in 1991 depicting the escape of American citizen Betty Mahmoody and her daughter from her husband in Iran. The film was shot in the United States and Israel, and the main characters are played by Sally Field and Alfred Molina...
By country:
- International child abduction in BrazilInternational child abduction in BrazilInternational child abduction in Brazil comprises cases in which the removal of a child by one of the joint holders of custody or non-custodial or contested parents to Brazil in contravention of other laws of other countries and/or the desires of other custody claimaints...
- International child abduction in Japan
- International child abduction in MexicoInternational child abduction in MexicoMexico is amongst the world's most popular sources and destinations for international child abduction while also being widely regarded as having one of the least effective systems of protecting and returning internationally abducted children within its borders....
- International child abduction in the United StatesInternational child abduction in the United StatesAs a result of its high level of immigration and emigration and its status as common source and destination for a large amount of international travel the United States has more incoming and outgoing international child abductions per year than any other country...