Between tort law, contract law, and child law: how to compensate the left-behind parent in international child abduction cases.

• Author: Schuz, Rhona
• Position: Introduction through II. The Tort Action Model (The Tort Model

Abstract

This Article deals with a unique intersection between civil (tort and/or contract) law, criminal law, family and child law, and international law.

Perhaps one of the most traumatic crises that can occur to an individual is having his child abducted by the other parent and taken to another country. The widely ratified 1980 Hague Convention on the Civil Aspects of International Child Abduction is designed to enable the crisis to be resolved as quickly as possible by mandating that the authorities in the state to which the child has been abducted order return of the child to the state of his habitual residence immediately preceding the abduction, unless one of the narrow exceptions in the Convention is established.

However, this remedy by itself does not put the left-behind parent in the position he or she was in before the abduction. In particular, the process of recovering the child often places a considerable financial burden on the left-behind parent. For example, he may incur costs in identifying the whereabouts of the child, in traveling to and staying in the state of abduction, and in paying the legal costs of submitting an application for the child's return in the courts of the requested state. Furthermore, the discovery that his child has been abducted together with the uncertainty as to whether and when he will recover the child and the lack of or reduced contact with the child will often cause considerable emotional distress. The issue of compensation for the left-behind parent is not discussed in the existing literature.

This Article examines, therefore, the extent to which it is appropriate to require the abductor to compensate the left-behind parent and the preferred framework for the provision of such compensation. We present four alternative models: the tort model (in which the left-behind parent brings a civil tort claim against the abducting parent), the contract model (in which the left-behind parent brings a civil contract claim against the abducting parent when a contract between the parents has been breached), the criminal model (in which compensation is awarded in criminal proceedings against the abducting parent), and the Abduction Convention model (in which compensation is awarded by the court of the state which is requested to return the child, as part of the proceedings under the Hague Convention). We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. After concluding that the Abduction Convention model is the preferred model, we discuss various dilemmas that arise in implementing this model and consider how to find an appropriate balance between the objectives of tort law and those of child law, as expressed in the Abduction Convention.

Among other considerations, this Article examines the delicate question of whether, in determining the compensation, courts should consider the background of the abduction, and in particular, the relationship between the abductor and the left-behind parent, the relationship between the left-behind parent and the child, contributory negligence or comparative fault on the part of the left-behind parent, the social background of the family, any involvement by the authorities, and the possibility that the abductor has acted out of frustration and despair due to mistreatment by the authorities.

INTRODUCTION

This article deals with a unique question of an intersection between civil (tort and contract) law, international law, family and child law, and criminal law. The goal is to try to find the most appropriate method of compensating the left-behind parent in cases of international child abduction. (1) While this is an independent issue, separate from the question of whether the court should order the return of the child, the context of the proceedings for return of the child is clearly relevant. Indeed, the questions which arise in this situation are far more complex than issues of recovery of costs and expenses which arise routinely in other types of legal proceedings because of the combination of several factors: the international element, the domestic context of the dispute, the need to take into account the impact on the child, and the social background to the abduction, which may involve issues concerning the responsibility of welfare and law enforcement agencies. In fact, it is this combination which makes the issue of compensation for the left-behind parent unique and deserving of discussion and analysis.

The Hague Convention on the Civil Aspects of International Child Abduction (2) [hereinafter AC] mandates the judicial or administrative authorities in the state to which the child has been wrongfully removed or retained [hereinafter "the requested state" or the "state of refuge"] to order immediate return of an abducted child to the state of his habitual residence [hereinafter "the requesting state" or the "state of origin"] prior to the abduction, (3) unless one of the narrow exceptions in the Convention is established. (4) More than eighty countries have ratified the AC, and more than a thousand applications to return abducted children are made under the Convention each year. (5)

One of the primary objectives of the AC is to restore the status quo ante. (6) While return of the child to the state of habitual residence does indeed fulfill this objective in relation to the physical situation of the child, this remedy by itself does not put the left-behind parent in the position he was in before the abduction. In particular, the process of recovering the child often requires the left-behind parent to incur considerable financial expense. For example, he may incur costs in identifying the whereabouts of the child, including payments to private investigators, in traveling to and staying in the requested state, in addition to the legal costs involved in bringing an application for return of the child in the courts of the requested state. In addition, the time involved in traveling to the requested state is likely to lead to a loss of earnings. Furthermore, the discovery that his child has been abducted, together with the uncertainty as to whether and when he will recover the child and lack of or reduced contact with the child, will often cause considerable emotional distress and even trauma to the left-behind parent. Sometimes it is necessary for the parent to undergo psychotherapy or other forms of treatment in order to recover psychologically from this harrowing experience. (7)

However, the power to award reimbursement of expenses other than legal costs in AC proceedings (8) is not widely used, and tort actions for damages--the natural framework, within which compensation can be claimed for other financial and non-financial losses--are seldom brought. (9) In two recent Israeli cases, which seem to be unique worldwide, left-behind parents have succeeded in a tort claim brought against the abducting parent and have been awarded compensation for losses which they suffered as a result of the abductions and the need to take legal action. (10)

While the tort model may seem natural and obvious--if harm has been caused by the abduction, there is no reason not to order the abductor to fully compensate the left-behind parent according to tort law for all relevant heads of damages, financial and non-financial--we will see that there are various problems with using this model in the child abduction context.

Accordingly, we think that there is a need to to examine the extent to which it is appropriate to provide compensation for the left-behind parent and to consider the advantages and disadvantages of alternative models for the provision of such compensation. We emphasize at the outset that the possibility of awarding compensation to the left-behind parent should not in any way be seen as derogating from or as an alternative to the central remedy of returning the abducted child. On the contrary, compensation is intended to be an additional remedy awarded after return of the child has been ordered. (11)

Among other considerations, this article examines the relevance of moral blameworthiness, or the delicate question of whether, in determining the extent of compensation, courts should consider the background relationship between the abductor and the left-behind parent, the relationship between the left-behind parent and the child, and the possibility of contributory negligence or comparative fault on the part of the left-behind parent. In particular, in situations where the abductor acted in response to domestic violence, child abuse, or other provocative behavior on the part of the left-behind parent, (12) it seems morally unpalatable to require the victim to compensate the aggressor. On the other hand, complete exoneration from the duty to compensate may be seen as condoning the abductor's illegal action and inconsistent with a policy of encouraging victims of abuse and violence to turn to welfare and law enforcement agencies for assistance rather than to take the law into their own hands. Thus, it may be thought appropriate to also consider the extent to which the abductor had already sought such help, particularly if he only resorted to self-help out of frustration and desperation when the relevant authorities failed to provide him with protection. (13)

We present four models for compensating the left-behind parent and the preferred framework for the provision of such compensation. We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. Part II presents the tort model. Under this model, the left-behind parent brings a tort claim against the abducting parent. In Part III, we present a similar civil action model, the contract model, in which the left-behind parent brings a claim for breach of contract against the abducting parent. The third model, presented in Part IV, is the criminal model, under which compensation is awarded to the...