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

• Author: Schuz, Rhona
• Position: III. The Contract Action Model (The Contract Model

3. The Contract Action Model (The Contract Model)

   1. Presenting the Model

      Where there is an agreement between the parties concerning the custody of the child and visitation arrangements, there may well be a breach of that agreement, which gives rise to an action for breach of contract and to the award of remedies, including compensation for financial and non-financial damages and the cancellation of the contract. The issues involved in awarding compensation to the left-behind parent for breach of contract are largely the same as those involved in awarding compensation in tort.

      An example for this model is the case of Dr. Z.M. v. R.M.P., which was discussed above in relation to the tort model. (142) In this case, the parties agreed in their divorce settlement, which was approved by the court, that the mother would have the sole custody of the child and the father would have visitation rights, but neither of them was allowed to take the child outside the jurisdiction without the written consent of the other party or of the court. The mother deceitfully took the child to Australia with no intention to return.

      Thus, the contract is in fact the divorce settlement, which settles matters such as custody and visitation. Often such a contract is approved by the court, which means that it also has the force of a judicial decision. This will also be the case in relation to a separation agreement or other custody agreement made in cases where the parents were not married from the outset. It seems that even an oral consent as to visitation and the conditions for leaving the country will be considered as a contract in these cases.

      Abduction can clearly be a breach of such contracts, even if the left-behind parent is not the custodian, where the contract clearly forbids a unilateral decision to take the child outside the jurisdiction and also where the removal prevents the realization of visitation rights. (143)

   2. Advantages

      The main advantage of the contract action compared to the tort action may be that the left-behind parent need not prove breach of duty of care or statutory duty, but only the existence of a contract and the breach of it.

      In addition to the right to claim compensation, the left-behind parent can ask the court to change the terms of the contract in light of the breach and the change in circumstances. This is true whether or not the contract was approved by a court.

      A contract action clearly promotes the major objective of contract law, which is to ensure that agreements are respected and, where they have been violated, to put the parties in the position that they would have been in if the contract had been performed, so far as possible. In the current context, this means compensating the left-behind parent for all the losses and expenses he has incurred as a result of the breach of the contract.

      Furthermore, a contract action is compatible with most of the goals of tort law and some of the goals of the AC in the same way as a tort action, as discussed above. (144)

   3. Disadvantages

      A contract action, like a tort action, is separate and independent from the proceedings for return of the child under the AC with the attendant disadvantages, outlined above. (145)

      Here too, the limited relevance of the abductor's lack of moral blameworthiness discussed above in relation to the tort model is equally relevant. In fact, there may be less scope for taking into account the left-behind parent's contributory fault because it is not clear that such a defense exists in contract law. (146) In addition, the left-behind parent can claim that if the abductor had complaints against him, he could have gone to court to seek appropriate remedies, such as changing the contract or even voiding it entirely.

      The rest of the procedural problems, such as res judicata, the splitting of damages, and the uncertainty in relation to heads of damage and quantification of compensation exist in this model too. Here also one may claim that the contract action may violate the autonomy of the family unit, and here too there is lack of consideration of the material welfare of the child. In addition, the abductor may argue that the contract was null and void because of defects in the formation of the contract, such as mistake, misrepresentation and undue influence. However, where the contract has already been approved by a court, it will usually be difficult to prove that it is not valid.

      Of course, a clear limitation of the contract model is the ex hypothesi pre-condition that there must be a contract between the parents which the abductor has breached. It is not sufficient to point generally to the marriage as a contract, (147) but rather one must look specifically to a divorce or separation agreement. If the couple has not yet separated, in most cases there is neither a written nor oral agreement, and thus this model will not apply.

4. The Compensation via Criminal Proceedings Model (The Criminal Model)

   1. Presenting the Model

      Under this model, a parent who was convicted of the offense of child abduction (148) would be ordered to pay compensation to the left-behind parent (149) within the framework of the criminal proceedings where the legal system in question makes provision for this. Another option, in cases in which there is a violation of a court order relating to custody, (150) is to convict the abductor of the offense of violating a court decision, if the criminal law in the legal system in question contains a provision that treats disobedience of a judicial decision as an offense. (151) The first option, however, is the main one under this model.

      Some legal systems make provision for compensation to be paid to victims of crime part of the criminal proceedings. Thus, if the defendant is found guilty of committing a criminal offense, the court has the discretion to order payment of compensation to the victim of the crime in addition to the punishment in the sentence, even though the victim is in no way a party to the proceedings. The compensation available under these schemes is usually more limited than tort compensation.

      The compensation may consist only of reimbursement of proven expenses caused directly by the offense. An example of this is the United States Victim and Witness Protection Act of 1982 ("VWPA"), which authorizes a district court to sentence a defendant to pay restitution to a victim of his offense. (152) This Act was designed "to ensure that the Federal Government does all that is possible within limits of available resources to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant." (153) According to VWPA, a district court may order reimbursement of "expenses related to participation in the investigation or prosecution of the offense." (154) There must be a close connection between the restitution ordered and the injury sustained from the criminal behavior. (155)

      Another example is a Connecticut statute, which, describing in more detail the compensation which may be awarded, provides that "[r]estitution ordered by the court pursuant to this subsection shall be based on easily ascertainable damages for injury or loss of property, actual expenses incurred for treatment for injury to persons and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses, but may include the costs of counseling reasonably related to the offense." (156)

      In contrast, in other countries, such as Israel, the relevant statute provides for general compensation according to a general assessment made by the court, without an exact discussion of heads of damages. (157)

      The compensation under criminal proceedings may be subject to a ceiling. For example, the Israeli Penal Law (158) allows maximum damages of 258,000 NIS (about $70,000), for each charge that was proven, while the actual damage may of course be much higher. The award of this compensation will not prevent the victim from bringing a civil action against the offender for the difference between the sum already awarded and the full damages assessed according to the usual tort measure. (159)

      In the United States, there are a number of examples of compensation being granted to the left-behind parent within the framework of criminal proceedings against the abductor, under various federal and state statutes. In United States v. Cummings, (160) the court stated that the attorney's fees, which were incurred in an attempt to regain custody of the abducted children, were a direct and foreseeable result of the abduction. In this case, the compensation was based on a former conviction of the father for abduction. The court held that the sums expended by the left-behind mother in trying to recover her children from Germany under the AC proceedings were direct losses within the VWPA. (161) It should be noted that in this case compensation was ordered even though the children were not returned under the AC proceedings. The court also held that a parent who is convicted under the Federal International Parental Kidnapping Crime Act (162) can be ordered to pay restitution to the other parent to reimburse him for legal expenses incurred in trying to recover his child. (163) Moreover, the Supreme Court of Minnesota upheld a decision reimbursing the mother for the costs she incurred in re-abducting her children from Algeria to the country from which the father had unlawfully removed them. (164) It is significant that the Minnesota statutory provisions governing the payment of restitution in criminal proceedings specifically provide that restitution can be awarded for expenses incurred by a parent to recover custody of a child who was the victim of the crime of depriving another of parental rights. (165) However, whether a left-behind parent will be able to claim compensation under restitution schemes in other states that do not make such specific...