Expanding the Vienna Convention on consular relations: protecting children by protecting their parents.

AuthorMcCroskey, Sarah Grey

ABSTRACT

Article 37 of the Vienna Convention on Consular Relations (VCCR) aims to protect the interests of foreign national children by requiring consular notification whenever these children come into the custody of the state. Consular assistance can be invaluable for foreign national parents and children who may not understand the language or the culture and who may be subject to discrimination based on their nationality. However, the VCCR is currently inadequate in two major ways. First, the protections of Article 37 are only triggered when the child in custody is a foreign national, leaving vulnerable to unfair treatment families in which the child is a citizen but the parents are foreign nationals. Second, enforcement of the VCCR is inconsistent, and the remedy for violations is unclear. This Note proposes amendments to the VCCR that would provide broader and more consistent protection to foreign national families.

TABLE OF CONTENTS I. INTRODUCTION II. THE IMPORTANCE OF CONSULAR NOTIFICATION IN CHILD WELFARE PROCEEDINGS INVOLVING FOREIGN NATIONALS A. What's at Stake: Child Welfare Proceedings Generally B. Additional Challenges for Foreign Nationals C. Types of Consular Assistance III. CONSULAR NOTIFICATION REQUIREMENTS IN INTERNATIONAL LAW A. The VCCR B. Additional Consular Notification Requirements IV. INADEQUACIES OF THE VCCR A. Coverage Gap: Protecting Children but Not Parents B. Inconsistent Enforcement V. PROPOSED AMENDMENTS TO THE VCCR VI. CONCLUSION I. INTRODUCTION

In the United Nations Convention on the Rights of the Child (CRC), 193 nations announced their conviction that "the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (1) This proclamation reflects the nearly universal respect that the family unit is afforded. (2) Given this respect, governments must be cautious when interfering with the family realm.

Child welfare laws generally reflect an attempt by the government to strike a balance between respecting the rights of parents to raise their children and protecting children when their parents are unable or unwilling to adequately care for them. (3) Although the central consideration is the best interests of the child, most child welfare systems presume that children are typically better off with their parents, (4) State intervention into familial life can traumatize all members of a family, (5) and this result is even more likely to occur when the family is living in a foreign country. (6)

In child welfare proceedings, parents have a fundamental right at stake: the right to the care and custody of their child. (7) If they are unable to adequately work with the government officials involved and fail to comply with judicial orders, they risk permanently losing their child, (8) When the parents are foreign nationals, they are on an unequal playing field. (9) Although the specifics of child welfare proceedings differ from country to country, a foreign national in any country would face similar challenges.

Consular assistance can effectively remedy these concerns because it provides someone to advocate for the rights of both parent and child. (10) More importantly, this advocate would come from the same cultural background as the family and would speak its native language. These characteristics allow the advocate to assist the family in ways that an attorney from the country in which the proceeding is taking place likely cannot. (11)

Recognizing these benefits, the United States and other countries entered into a number of international agreements providing for consular notifications when foreign nationals become involved in child welfare proceedings. (12) Most notably, Article 37 of the VCCR calls for automatic consular notification whenever the appointment of a guardian "appears to be in the interests of' a foreign national minor. (13) While this provision has the potential to provide substantial protections for families whose children are removed from them in foreign countries, it is flawed. Because Article 37 is triggered only when the child involved in the proceeding is a foreign national, it offers no protection to families of mixed citizenship status--families in which the immigrant parent is a foreign national, but the child is a citizen of the country of residence. (14) Furthermore, countries disagree about the proper interpretation and application of the VCCR, leading to poor enforcement. (15) These issues must be promptly resolved in order to ensure respect and protection for the fundamental rights of parents and the sanctity of the family.

This Note details the significance of consular involvement in child welfare proceedings involving foreign nationals, identifies the obstacles current international laws face, and proposes changes to make those laws more effective. Part II provides a background in child welfare law and the particular challenges facing foreign nationals in these proceedings as well as an explanation of the assistance that consular officials can provide. Part III summarizes the international agreements that provide for consular notification, focusing on the VCCR. Part III recognizes two major issues that impede these agreements from providing adequate protection of foreign nationals in child welfare proceedings. First, it identifies a gap in protection for foreign national parents whose children are citizens and argues that these parents deserve the VCCR's protection based on principles of parental rights found in approaches to child welfare around the world. Second, it describes the inconsistent enforcement of the VCCR due to international dispute over whether Articles 36 and 37 confer individual rights. Finally, Part IV proposes an amendment to the VCCR that would require state officials to notify all foreign national parents involved in child welfare proceedings of their right to consular assistance and would provide an individual cause of action for Article 37 violations.

  1. THE IMPORTANCE OF CONSULAR NOTIFICATION IN CHILD WELFARE PROCEEDINGS INVOLVING FOREIGN NATIONALS

    1. What's at Stake: Child Welfare Proceedings Generally

      A basic understanding of the child welfare process is necessary to comprehend the unique difficulties facing foreign nationals. The details of this process vary from country to country, but an understanding of the United States' child welfare system will provide a sufficient framework for analyzing the need for consular assistance. (16)

      If the state suspects that a child has been abused or neglected, the state court will hold an adjudicatory hearing at which both the state and the parent may put on evidence. (17) Once the judge determines that the child is dependent and neglected, child protective services (CPS) workers and the parent develop a case (or permanency) plan. (18) This plan discusses the problems that led to the state's involvement with the family, lists services to be provided for both parent and child, and includes specific improvements that the parent needs to make within the stated time frame. (19) While the parent works toward the goals of the permanency plan, the child remains in the legal custody of the state but can be placed with the parent, in kinship care, in foster care, or in a group home. (20)

      The parent is primarily responsible for making progress on the permanency plan, but the state is required to make reasonable efforts to assist. (21) The ultimate goal is for all the components of the permanency plan to be achieved and for the child to be returned to the parent. However, if the state makes reasonable efforts and the parent fails to meet the requirements of the permanency plan, the state may petition to terminate the parent's rights. (22)

      Termination of parental rights (TPR) is the most extreme action that the CPS arm of the state can take. (23) The most common grounds for TPR include abandonment, failure to remedy a persistent condition that led to the removal of the child, and substantial noncompliance with the permanency plan. (24) Although state law controls TPR proceedings, the U.S. Constitution is also implicated because the Supreme Court in Santosky v. Kramer held that there are constitutional rights at stake. (25) Parents have a fundamental liberty interest in the "care, custody, and management of their children." (26) Thus, the rights of parents cannot be terminated without due process of law. (27) In Santosky, the Supreme Court cautioned that this constitutional right "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." (28)

    2. Additional Challenges for Foreign Nationals

      The child welfare process is more complicated when the parent, the child, or both are foreign nationals. When the parent is a foreign national, English may not be his first language, making it difficult for him to communicate with other parties and understand the legal proceedings. (29) Cultural differences between the foreign national's home country and the United States may result in misunderstandings or incorrect assumptions by the parent, state officials, or judges. (30)

      If the parent is in immigration detention, it can be difficult for the child welfare agency to work with the parent to fix the problems that led to the child coming into state custody. (31) CPS workers are accustomed to implementing necessary adjustments to work with incarcerated parents; (32) however, immigration detention differs from prison in several key ways. Immigration detainees tend to be located farther away from home than prison inmates, making it hard for their attorneys and CPS caseworkers to visit them. (33) Typically, parents in prison receive services ordered by the permanency plan, such as counseling, alcohol and drug treatment, or...

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