Getting Tough on International Child Abduction

• Date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12467
• Author: Judge Peter J. Messitte
• Published date: 01 January 2020

ARTICLES

GETTING TOUGH ON INTERNATIONAL CHILD ABDUCTION

Judge Peter J. Messitte

International child abduction, typically undertaken by one of the child’s parents, has become an increasing problem in recent

years, particularly in the United States. Parents have encountered serious difficulties in repatriating an abducted child. The

1980 Hague Convention on the Civil Aspects of International Child Abduction, signed by the U.S. andmany other countries,

establishes an international procedure for pursuing claims of child abduction. The Office of Children’s Issues of the Bureau

of Consular Affairs of the U.S. Department of State is the Central Authority that administers the Convention and its

implementing legislation for the United States. In the author’s view (and his alone), the Office of Children’s Issues has not

been sufficiently vigorous in seeking sanctions against countries that do not comply with the Convention. Even after Con-

gress passed legislation in 2014 specifically directing the State Department to apply increasingly severe sanctions against

noncompliant countries (the Sean and David Goldman Act), the State Department has still essentially failed to do so. Brazil

is one signatory to the Hague Convention that the State Department itself has determined to be consistently noncompliant

with the Convention since 2013. Yet the State Department has failed to impose significant sanctions on Brazil, among other

countries.

Key Points for the Family Court Community:

International child abduction, typically undertaken by one parent of the child (or children) is a growing problem, par-

ticularly for U.S. left-behind parents.

Although the 1980 Hague Convention on the Civil Aspects of International Child Abduction, of which the United

States is a signatory, establishes a procedure for left-behind parents who are seeking to repatriate an abducted child,

some signatory countries have consistently been noncompliant with its provisions.

The U.S. Congress has been critical of the U.S. Department of State for not having been sufficiently vigorous in

sanctioning noncompliant countries, even after it passed specific legislation in 2014 (the Sean and David Goldman

Act) which directed the State Department to apply increasingly severe sanctions on countries that consistently fail to

comply with the Hague Convention.

The State Department has determined that Brazil, also a signatory to the Hague Convention, has been noncompliant

with the Convention since 2013. But the State Department has failed to vigorously apply available sanctions against

Brazil.

Keywords: 1980 Hague Convention on International Child Abduction; International Child Abduction; Office of Children’s

Issues; Sean and David Goldman Act of 2014; U.S.Department of State.

Some years ago, the actress Sally Field appeared in a movie entitled “Not Without My

Daughter,”in which she portrayed an American wife and mother living with her Iranian husband

and their daughter in the United States. In the film, the husband, after taking the daughter to Iran

where he had family, detained the child there and refused to return her to the United States. The

movie depicted in full the travails of a mother trying to bring her child back to the States, which

Corresponding: judge_peter_messitte@mdd.uscourts.gov

This article expresses the personal view of the author only. It speaks on behalf of no other individual or organization, includ-

ing, of course, the U.S. Department of State, the U.S. Congress, and the INHJ.

An abbreviated oral version of this paper was presented at the Fourth Conference of the INHJ Convention in Miami, Florida,

on October 26, 2018. It has been updated to account for developments since then.

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 195–210

© 2020 Association of Family and Conciliation Courts

she eventually managed to do by having someone kidnap her back. The movie was a big hit, bring-

ing in nearly $15 million at the box off ice.

1

But the reality is harsher. Counter-kidnaps of internationally abducted children are rare and full

of risk. More importantly, even patient reasonable efforts to repatriate a wrongfully taken child

(or children) often fail to accomplish the goal of returning the child to the left-behind parent.

International child abduction is an extremely serious global problem and is almost certainly on

the increase.

2

The paradigm case is where parents may or may not be separated, one of them leaves

the child’s country of habitual residence, takes the child back to his or her country of origin, and

detains the child there, while the left-behind parent, if he or she can afford it, is left with a titanic

and costly battle to get the child back. For many years, the situation was particularly fraught,

because some countries automatically or consistently favored the native-born taking parent, explic-

itly approving or at least acquiescing in the retention of the child in their country. That, sadly, was

where most stories ended. To be sure, parents occasionally reached some sort of accommodation

whereby a child was returned to its country of habitual residence or an agreement was entered into

under which transnational access to the child would be shared. There were also occasional bilateral

negotiations, for example, between the United States and the government of the country to which

the child was taken, where return or shared custody of the child was worked out. But, on the whole,

the situation remained relatively chaotic and unsatisfactory.

The United States is probably the most affected country in international child abduction cases

because most children are taken from the United States, despite it having been the country of habit-

ual residence of the child before the abduction (Mexico, adjacent to the United States, appears to be

the most prominent destination for fleeing parents). But, many children are also taken to the United

States from what was their country of habitual residence before the abduction.

The situation undoubtedly is better today than it once was, when an essentially unregulated Wild

West environment existed. But in 1980, several nations came together to negotiate the Hague Con-

vention on the Civil Aspects of International Child Abduction,

3

which today has some ninety-eight

Signatory Nations.

4

The Convention is currently in force between the United States and seventy-

seven of those nations; the remaining twenty-one nations cooperate with the United States through

bilateral agreements, if at all.

5

The United States was one of the first signatories to the Convention,

which Congress implemented in 1988 by adopting the International Child Abduction Remedies Act

(ICARA).

6

Here is how the Convention is supposed to work:

Each signatory country designates an administrative agency, called its Central Authority, to nego-

tiate with the Central Authorities of other signatory countries, set up to handle international child

abductions or retentions. The Convention applies to children under the age of sixteen and, as a fun-

damental operating principle, establishes that the country of “habitual residence”of the child prior

to its removal or retention should decide all questions of custody and access,

7

implying that the

child should be returned promptly to that country so that those critical matters can be resolved.

Indeed, the ideal time for the return of a child to its country of habitual residence is deemed to

be six weeks,

8

although that timeline is observed more often in the breach than in the observance.

Even so, it is universally recognized that the longer the delay in returning a child, the greater the

negative psychological effects on the child after the child eventually returns to the country of habit-

ual residence. These effects may manifest themselves in several ways, including anxiety, eating dis-

orders, nightmares, and dramatic changes in behavior.

9

Most signatory countries, it is fair to say, are reasonably diligent in applying the Convention and

act in more or less timely fashion. The Office of Children’s Issues (OCI) within the Bureau of Con-

sular Affairs of the U.S. Department of State serves as the Central Authority for the United States

under the Convention, and is very active both in seeking the return of children illegally abducted

from the United States and in assisting efforts to accomplish the return of children who have been

brought here illegally.

10

In a sense, the system is set up to operate outside the judicial process without either attorneys or

court proceedings being necessary. However, in the United States at least, attorneys are often

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