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Many of us take on work or studies in a foreign country, and some of us end up having a family with someone of a different nationality. All great for international understanding? Well usually. But if the relationship breaks down, this type of globally mobile lifestyle brings new challenges for the family courts. Where do you file for a divorce? What about custody and visitation? What if the custody battle turns acrimonious?
With the increase in transnational marriages, international parental child abduction has become a serious problem that affects both individual states and the international community. Parents who feel unfairly treated by the family courts may "forum shop" taking the kids into a new legal jurisdiction that will be more likely to rule in their favour, thus sparking a re-run of their custody case. The Hague Convention on International Child Abduction is designed specifically to prevent this border-hopping between nations; signatory countries agree to accept decisions already made in another jurisdiction and to promptly return abducted children to their place of habitual residence.
The UN Convention on the Rights of the Child also obliges states to ensure that national borders are not used to prevent children from having contact with their family. Signatory states commit to ensuring the continuity of a child's life when a substantial part of it resides in another country.
Yet it is one thing to accept that is in the child's best interests to maintain contact with their family and promptly return home; it is another to actually carry this out.
While international legal conventions are designed to regulate cross-border disputes and harmonise legal proceedings, these are not always enforced with appropriate urgency and are frequently evaded or blatantly disregarded. Although parental abduction has been defined as amounting to child abuse, the rights of the child are sadly often ignored in international abduction cases, with nationalistic posturing taking precedence.
Families living abroad are away from the steadying influences of friends and extended family, and may also slip through society's safety nets of schools, doctors, social workers and counsellors. Who is going to follow up on a family that has moved abroad? Who will bother to find out the background of a family newly arrived in a country? If you don't speak the language, how can you seek advice and counselling? National laws governing family issues must be adapted to the changing international culture and to reflect the ease of international travel and the transnational nature of many modern families.
US-Italy-Russia
The recent case of the Grin/McIlwrath children highlights the numerous failings of the Russian authorities to work together with their Italian counterparts to protect the children involved. Grin, a Russian-born US citizen who was living in Italy, abducted her four children from their American custodial father in Florence. She travelled to Russia with the children despite Italian court rulings which removed her custody rights and indicated that the children were at risk if they remained with her. Her children have since been placed in Chabad-Lubavitch institutes/orphanages in St Petersburg at her request "for their own safety".
The plight of the children, who are fluent in both English and Italian, has not even been acknowledged by the Russian authorities. It appears that the obligation of the state to ensure their safety and well being, and contact with their family and friends in Italy in the US, has been completely overlooked since they have been moved into a new jurisdiction, despite the fact that Italy, the US and Russia are all signatories to the Hague Convention.
Russian authorities have similarly done nothing to end the children's isolation from family and friends, nor ensured they are safe from the risks identified in the Italian court proceedings.
Canada-Poland
In a parallel case two Canadian boys, Alexander and Christopher Watkins, were abducted by their Polish mother after her custody was revoked due to child-neglect. The boys were taken via the US and into Germany where the trail went cold. The Canadian authorities voiced serious concerns about the safety of the children and the ability of the mother to care for them, an Interpol red notice was issued and the mother was put on Canada's most wanted list. When the children were finally located in Poland, the father immediately applied to have the boys returned home. At the December hearing in Poland the judge ruled that the children are now settled in Poland and should not be returned to Canada. This is despite the boys' school in Poland independently suing the mother for child neglect. The appeal will be heard on 16 May 2012.
Leaving the children in the care of a demonstrably neglectful and potentially abusive parent is a clear breach of the Convention on the Rights of the Child. Refusing to return the children to the custodial parent is a violation of the Hague Convention. That Poland as an EU member state is not being held accountable for the misapplication of these laws and agreements as well as blatantly ignoring Interpol red and yellow notices raises concerns for the quality of European law.
Although both cases have a non European element they both involve EU borders. The issues of cross-border problems arising from divorce or family problems should be tackled more effectively within the EU. While there is often talk of the unification of laws in the EU there is a clear lack of co-operation when it comes to family law. In a region in which members of EU states can move freely between and within numerous jurisdictions the legal tools must exist to deal with the resulting problems of this freedom of movement.
It's not clear why the Hague Convention is largely ignored in many states, possibly it is perceived by the national judiciary as meddling from outside, maybe it's just a sign of the general distrust of and reluctance to co-operate with another country's legal systems, or it could just be plain nationalism: siding with the parent of the same nationality.
If the unification of laws in the corporate sector is moving ahead, why are the laws governing our private lives being left behind? The creation of networks such as Interpol, Europol and various UN initiatives have offered little assistance in addressing problems arising from transnational familial relationships, especially those involving children. While numerous national and international legal measures have been created to uphold the rights of the child, their application has been limited. The enforcement of existing laws and international agreements has not been enough to protect children from the dangers of international child abduction.
Immediate action is essential in cases of child abduction because of the age and vulnerability of the children compounded by the volatility of a parent who is putting their own child through the trauma of abduction. Yet both Poland and Russia have failed to act on these cases, posing a serious risk to the children involved. The person posing the greatest danger to an abducted child is the abductor.
Follow Natasha Kuilak Mellersh on Twitter: www.twitter.com/@tashalaws
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Courts in all western countries are much more reluctant to remove custody from mothers than dads despite oten paying lip service to equal rights and shared custody. There is an assumption that kids are always better off with Mum and those mothers who volutarily give full custody to the father are not usually met with a lot of understanding. When a mum has custody taken away from her by the family courts, it is usually for very good reasons (mental health issues, drug abuse, child neglect) yet even in these cases the mothers are still sometimes allowed unsupervised access, as in the two cases detailed above.
On the other hand, if a father is suffering from mental illness, he's unlikely to get unsupervised access to the kids after a separation and so will have less opportunity to abduct. If a mentally ill father does grab the kid, there's likely to be an immediate manhunt on a big scale, sometimes ending in a hostage/police siege.
"Successful" parental abductions by fathers tend to be men taking kids on "holiday" to visit family in countries that are not signatories to the Hague Convention, and then not bringing them back. And while this is certainly very distressing for the left-behind parent and particularly for the kids, the kids are usually physically safe in these cases.
The article listed examples of the failures of the Hague Convention. But it does not mention successes of the Hague Convention that have been egregious failures for the children. One example is the case of the mother who was murdered in front of her children in the UK, by the children's father. The children and the mother had been forced by Australia to return to UK, despite the father's past behavior, because the court deemed his violence had not been direct at the children, and the UK could protect the mother. An other example is the case of two children who were forced to return to the US from Canada, against their testimony. The children were shot and one was killed by their father after US authorities tried to remove the children.
In the Russia case you listed, the Hague Convention does not apply because it came into force in Russia in October 2011, and the children were taken there in August 2011. Laws cannot be applied retroactively.
The video of the Russian case (see Avram's link) demonstrates perfectlywhy issues over custody should be determined at the place of domicile, even if this takes time. It is one of the best examples I have seen of mental illness being strongly correlated with abductors and abductresses in international cases. As the video shows clearly, a mother abducted her children presumably to be with them, but then put them into orphanages (and is caught lying about it).
For the rest, what you are advocating is lawlessness, to unilaterally break the law and then get away with it by saying the kids have now adjusted. It's like, "I robbed the bank but have since spent the money to buy a home, and because the kids are so happy now we should be able to keep it."
The Hague convention as it written acknowledges that removing a child after the child has been settled risks harm to the child. That's why article 12 of the Hague Convention says that if a case begins more than a year after the child was removed, the court has to weigh whether it's in the best interests of the child to force a return. The drafters of the treaty were in agreement that removing a child for a second time after they've settled posed challenges and risks to the child.
The problem is that cases are NOT resolved within 6 weeks, and often not within a year. The child settles, but because the case was filed within a year, the court is NOT ALLOWED to consider the best interests of the child. In any other custody case, the most important consideration would be the best interests of the child, and if the move would serve those interests. BUT the quirk of the Hague Convention is that because it ASSUMES a case will be settled quickly, within 6 weeks, it PREVENTS the court from asking about the best interests of the child even when the case takes 5 years to settle.
@Tasha Laws, why is there no mention of the egregious failures of the Hague Convention? Failures like the case of the children who watched their mother murdered by their father, after an Australian court forced the mother to return with her children to the UK. Or the example of the children who were shot, and one killed by their father in the US, after a Canadian court forced the children to return.
In fact, the point of the Hague Convention is to ensure the PROMPT return of children to their habitual place of domicile because it's the right thing to do. Unfortunately, people tend to focus only on those cases where the abducting parent is, like Grin, a character straight out of a Hitchcock film. (I watched the video in the link you gave and it's disturbing, to say the least.
http://bringflorentinekidshome.wordpress.com/2012/05/11/english-version-news-program-on-abduction-and-isolation-of-the-children/ )
Here are a few tips to increase your chances of getting your child back: http://andreasmoser.wordpress.com/2009/08/07/10-faq-on-international-child-abduction/
My experience with the German courts has been very different, they were very slow and ineffective and ultimately unsuccessful in returning the children in that particular case. Although this was a rare and tragic example, it did highlight a long list of failings in the German justice system.
The enforcement of the Hague Convention is not always carried out sufficiently and the Convention on the Rights of the Child must also be considered. I am referring here to cases in which the courts have not been successful in effectively enforcing these measures or have failed to secure the safe and prompt return of the child.
I do agree that organisations such as Reunite http://www.reunite.org/ are very helpful and supportive of families going through these problems.
That the abduction of children represents child abuse, and a violation of basic human rights, is not in doubt. It's time to see some responsible action by governments instead of nationalism.
I think to ignore the negative emotional effects of children who have been abducted by a parent would be unrealistic. Your comments on both the Grin and Watkins cases are uninformed and misleading. Having met dozens of families affected by these issues myself I can assure you that my views are not simplistic. My 'oversimplification' is more due to the fact that the length of a single article is not sufficient to discuss all the issues in this area.
I wrote this to draw attention to the issues involving international child abduction and to point out the legal constraints that affect these cases. Each case is different however the law should attempt to deal with these cases more effectively where possible.
So, to clarify why the Hague Convention is largely ignored in many states, the US is truly leading by example. The US has been consistently unwilling to raise the issue of ICA in high level diplomatic discussions, much less recognize it publicly as a Human Rights issue or even hint that these cases often easily fit within most definitions of child trafficking.
Our very lack of advocacy, the total silence of US officials, far from being a neutral factor, actually generates a very powerful impression that these "abduction" cases are not important.
The global expectation that the United States is ready and willing to act when genuine human rights violations occur is the brand image the US has consistently promoted. When foreign authorities fail to see vigorous advocacy for "abducted" children by the United States they reasonably infer it's not a serious issue, at which point, biases like nationalism, xenophobia, sexism and ethnocentrism take over and child abductors are generally rewarded by having their destination country legally confirm their crimes granting an aura of legitimacy to the butchering of the family left behind and the child's fundamental rights.
If the US wants to lead by example, it should be returning children under the Hague convention, especially when the US parent is loudly going to the press and complaining. But does this happen? (not a provocative question - I really do not know the answer.)
Some of the biggest problems with the USA's handling of incoming cases is the fact that it claimed an exemption when they ratified the treaty to the effect that they will not pay the legal costs of foreign parents trying to fight in American courts. This puts any parent, but particularly poor parents from poor countries in a very untenable position if they cannot find pro bono legal representation (something not so commonly offered to fathers.)
The abduction of Emily Rose Hindle from the UK to the US is a good example of how poorly the USA can handle a Hague Convention case.
There is also the possibility for some obscene delays in the US legal system, such as with the Abbott case that was handled by the US Supreme Court.
Another problem is the quality of family court judges that handle Convention cases. Experienced judges rarely sit in family courts and family courts themselves in the US are rarely subjected to Constitutional Review, so there's substantial potential for some family court jurisdictions to be run as personal fiefdoms by out of control courts drunk on their power and lack of accountability.