Trotter the Hague Convention Two Decades Later: Assessing the Effectiveness of the International Child Abduction Remedies Act

• Citation: Vol. 6 No. 1
• Publication year: 2002

Gonzaga Journal of International Law

Gonzaga University 721 N. Cincinnati St. Spokane, WA 99202 Phone 800 986 9585

Cite as: Laurie L. Trotter, The Hague Convention Two Decades Later: Assessing the Effectiveness of the International Child Abduction Remedies Act, 6 Gonz. J. Int'l L. (2002-03), available at http://www.across-borders.com.

The Hague Convention Two Decades Later:

Assessing the Effectiveness of the

International Child Abduction Remedies Act

By

Laurie L. Trotterl

I. INTRODUCTION

As the our society becomes increasingly globally connected through the ease of international air travel, the advent of the internet, and the strength of international commerce, it is inevitable that family relationships will also enjoy international diversity. However, when parents from diverse national origins decide to dissolve their matrimonial ties, parental preferences concerning where to raise the children of that marriage can result in conflict. Disputes of this nature may lead one parent to abscond with one or more of the marital children to gain a custodial advantage in a home country where domestic relations law is beneficial to that parent.[1] In this situation, the left-behind parent's options to secure the return of his or her children are limited.[2]

In fact, the problem of child abduction is significant.[3] At the present time there are about 1,000 reported cases of children who have either been kidnapped from the United States or are being wrongfully held abroad.[4] Moreover, instances of child abduction have increased.[5] Resolution 98, presented to the Senate in March, 2000, states that, "[t]he situation has worsened since 1993, when Congress estimated the number of abducted and wrongfully retained American children to be more than 10,000."[6]

The Hague Convention on the Civil Aspects of International Child Abduction was adopted on October 24, 1980[7] as a remedy for the left-behind parent.[8] The United States codified the Convention into law on April 29, 1988, with the enactment by Congress of the International Child Abduction Remedies Act (ICARA).[9]

This paper will first begin with a review of the terminology specific to ICARA. Second, it will examine the provisions and purposes of ICARA, particularly as these provisions and purposes apply to wrongful parental removal or retention of a child across international borders. Third, it will provide an analysis of the constitutional ramifications of ICARA. Family law matters and concerns about child custody issues traditionally fall within the purview of state law rather than federal law. This paper will address whether ICARA encroaches upon the Constitution when federal law preempts a state order concerning child custody.

Fourth, it will review the exceptions that provide the adjudicating authority the flexibility to refuse the return of the child, and thus defeat the purpose of ICARA. To a large extent, ICARA has been relatively effective in carrying out its goals.[10] However, there are a number of exceptions within ICARA that grant a governmental authority wide discretion in adjudicating the return of the abducted child to the left-behind parent.[11] Fifth, this comment will also review the effectiveness of the Act in fulfilling its purpose, by considering the federal and state cases that have construed ICARA. Finally, it presents proposals for improving ICARA and provides suggestions to assist attorneys who are involved in ICARA litigation.

II. TERMINOLOGY

Provided below are definitions of selected terminology frequently used in ICARA. Knowledge of this terminology is necessary to understand the Act as intended by its drafters.[12]

Abduction.

The term "wrongful abduction" is not used in a criminal sense, but rather a civil sense.[13] "[W]rongful abduction signifies a '[w]rongful removal or retention' . . . refer[ring] to the taking of a child from the person who was actually exercising custody of the child. . . [or] keeping the child without consent of the person who was actually exercising custody. . ."[14]

ABDUCTOR.

An abductor is "[t]he person alleged to have wrongfully removed or retained the child. This person is also referred to as 'alleged wrongdoer' or 'respondent.'"[15]

PERSON.

Within ICARA, the word "person" means, "[t]he person, institution or other body who . . . actually exercised custody prior to the abduction and is seeking the child's return. The 'person' seeking the child's return is also referred to as the 'applicant' or 'petitioner.'"[16] For the purposes of this comment, the person is most often referred to as the left-behind-parent, but can also be someone other than a biological parent, such as a grandparent or foster parent who is exercising physical custody of the child at the time.[17]

Country of Origin.

The "Country of Origin" is the, "child's country ('State') of habitual residence prior to the wrongful removal or retention."[18] "Country of Origin" is also described in the Convention as "requesting country."[19]

Country Addressed.

The Country Addressed is "[t]he country ('State') where the child is located or the country to which the child is believed to have been taken. It is in that country that a judicial or administrative proceeding for the child's return would be brought."[20]

The Convention.

"The Convention" refers to the Hague Convention on Civil Aspects of International Child Abduction.[21] The Convention was codified into U.S. law as the International Child Abduction Remedies Act (ICARA).[22] ICARA is also referred to as "the Act." The Convention and the Act are essentially the same, except that ICARA includes some reservations that were added when it was codified into U.S. law.[23] One reservation specifies that an English translation should be included with all foreign language correspondence related to the Convention.[24] A second reservation states that the U.S. Government will not assume the costs associated with returning a child wrongfully held in the U.S. to the Country of Origin.[25] These costs may include legal fees and court costs related to bringing litigation in the U.S.[26] Despite these slight differences, the U.S. courts often refer to the articles specified in the Convention when interpreting ICARA.[27]

Central Authority.

The Convention mandates that Contracting States designate a "central authority" to assist in implementing the responsibilities described in the convention.[28] In the United States, the Department of State is the Central Authority.[29] As such, a left-behind parent seeking return of an abducted child may apply for assistance through the Department of State. They may also initiate judicial proceedings, as provided in ICARA.[30]

Child.

The term "'[c]hild' or 'children' means persons under the age of sixteen.[31]

CONTRACTING STATE.

A Contracting State is a signatory member that has enacted the Convention.[32]

III. ICARA'S PURPOSE

The Convention's goals are to provide assistance to the left-behind parent and to the children who have been wrongfully abducted across international borders. Children who are wrongfully removed from their home of residence and transported across international borders are "deprived of the stable relationships" the convention was designed to restore.[33] The Convention was designed as a simplified process to assist the left-behind parent and protect the abducted child by facilitating the child's expedited return to the home of residence.[34]

In general, Contracting States are required to carry out the responsibilities set forth in the Hague Convention. These responsibilities include: "(1) [Securing] the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State is effectively respected in the other Contracting States."[35]

Contracting States have wide discretion in implementing the Convention, however, there are several exceptions available to the Country Addressed if it wishes to block the return of abducted children.[36] These exceptions will be examined in more detail in Section V.

IV. ICARA PROVISIONS

The following overview of ICARA's provisions is not intended to be a comprehensive examination of ICARA, but rather a summary of the basic assertions contained in the Act. The scope of the Act, the goal of expedited ICARA proceedings, and the Act's civil limitations will be discussed. Additionally, this section considers court interpretations of the Act's "wrongful removal or retention" and "breach of custody rights" provisions.

Initially, examples of how courts have applied custody orders during ICARA litigation will be presented. Secondly, this section will examine the obligations of a judicial authority in ordering the return of an abducted child. Court interpretations concerning jurisdiction for custody disputes will also be discussed. And lastly, this section will explore how courts have interpreted the provisions for awarding attorney's fees and expenses during ICARA litigation.

Scope of Act.

The remedial mechanisms available in ICARA only apply if the child falls within the constraints of the Convention.[37] Under these constraints: (1) the child must have been taken to a Contracting State which has ratified the treaty; (2) the child must be below the age of sixteen; (3) the child must be taken from the place of habitual residence to another location across...