Smita Aiyar, International Child Abductions Involving Non-hague Convention States: the Need for a Uniform Approach

• Publication year: 2007

COMMENTS

INTERNATIONAL CHILD ABDUCTIONS INVOLVING NON- HAGUE CONVENTION STATES: THE NEED FOR A UNIFORM APPROACH

INTRODUCTION

Young British woman looking for a lasting relationship with single

Arab men.

Spanish male seeks to meet educated and intelligent Chinese women for long term relationship.

A real Prince from West Africa with Ph.D. seeks a lady who is ready to marry and establish a family-willing to relocate to any part of the world as my Queen wishes!

American woman in Philadelphia seeking well traveled European

Guy.¹

Snippets of personal ads, such as those listed above, reflect the notion that global romance truly has blossomed in this age of internet dating and virtual relationships. As such interactions among citizens of different countries rise, there is a correlated increase in the number of inter-cultural unions which often involve divergent cultural and religious beliefs.²In turn, as these marriages break down and access to international travel continues to be readily available, the number of international child abductions increases.³

Child abduction, which was first perceived as a problem in the latter half of the twentieth century,⁴is defined as the "unilateral removal or retention of children by parents, guardians or close family members."⁵Although other abductions do occur, abductions by a non-custodial parent or family member constitute the majority of abductions occurring today.⁶For the most part, the removing parents' motive behind child abduction is not financial gain, but rather the complete control over the child in a new jurisdiction.⁷Often, the abducting parent may believe that removal of the child is in the child's best interests,⁸and culture and religion can play a major role in influencing his or her actions.⁹

Until the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention),¹⁰the problem of international child abduction had not received much beyond cursory attention.¹¹The Hague Convention expressly intended "[a.] to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and [b.] to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."¹²Based exclusively in civil international law,¹³the Hague Convention governs cases dealing with international child abduction among the seventy-six countries that are signatories to the Hague Convention.¹⁴It is readily recognized that the Hague Convention has enjoyed success in resolving cases of child abduction among signatory states.¹⁵According to the U.S. Department of State, "while Hague cases constitute about 30 percent of the total volume of abduction cases handled by the Department, they represent a larger percentage (over 50 percent) of children returned."¹⁶

However, child abductors frequently flee to non-signatory countries because the return of the child is not guaranteed.¹⁷In such instances where the Hague Convention does not apply, the U.S. government can do little to help the left-behind parent, especially if the non-signatory nation ignores requests for the child's return.¹⁸As the recent case of Taveras v. Taveras¹⁹illustrated, the Hague Convention's provisions can only be applied to situations where, prior to removal, the child was a habitual resident of a contracting State and was subsequently removed to another contracting State.²⁰Given the trend that indicates that most child abductions occur within multicultural nations with high immigration rates (many of which are not parties to the Hague

Convention), it is apparent that there is still much room for improvement to guarantee the safe return of the child.²¹There are growing efforts to encourage more countries to sign onto the Hague Convention in hopes of reducing the number of non-Convention countries that may provide a "safe haven" for abducting parents.²²

Of the countries currently bound to the Hague Convention,²³only eight are not in Europe.²⁴Thus, if children are abducted to countries in the Middle East or developing countries that are not signatories to the Hague Convention,²⁵the remedies and redress available become greatly complicated. A worst-case scenario illustrating the lack of support offered to parents whose children are abducted to non-Convention countries was illustrated by the high profile Raja Bahrin child abduction case in the early 1990s between Malaysia and Australia.²⁶Raja Kamarul Bahrin, a Malaysian prince of Islamic faith,²⁷abducted his two children from Melbourne, Australia and took them to live in Malaysia in 1992.²⁸To this day, his former wife, Jacqueline Gillespie, has not seen her children.²⁹Malaysia represents a problem commonly seen in many Muslim countries, as the Hague Convention has not been adopted thus far by any state that follows the Shari'a (Islamic law).³⁰It is believed that Shari'a would conflict with many of the Convention obligations as its system of family law is enmeshed within religious belief and expression, which differs from

Western thought.³¹

The implementation of the Hague Convention caused a fundamental change to the conflict of laws rules within a signatory country's legal system. One benefit is that it is much easier to resolve cases of child abductions between two countries that are signatories to the Hague Convention. However, it does not address the continuing problems that arise when dealing with non- Convention countries. This weakness is especially visible in cases involving the abduction of children from a non-signatory nation to a signatory nation in which case law, especially in both the United Kingdom and United States courts, is inconsistent. In some instances, courts within these signatory nations have embraced the principle of comity whereas in others they have refused to return children to a non-Convention country whose standards of justice fell short of that expected by Convention courts.

There has also been much confusion over questions concerning the propriety in applying Convention concepts in an analogous manner to these non-Convention cases. Although the recent decision by the U.K. House of Lords in June 2005³²in Re J required that a "best interests of the child" standard be applied instead of Convention principles in all non-Hague cases, the issue of how to approach non-Convention cases still remains unresolved by U.S. courts.³³This lack of international uniformity in handling non-Hague cases may lead to a growing gap among signatory courts that interpret and decide these cases, such that potential abductors may exploit the loopholes to their advantage.

This Comment proposes an amendment to the Hague Convention to allow for a uniform approach for dealing with non-signatory countries in light of the growing divergence between courts in the United States and the United Kingdom in resolving such child abduction cases. Part I provides background information about the Hague Convention, including its purpose and objectives, the process of establishing a valid claim under the Hague Convention, and the discretionary exceptions available within the instrument. Part II explores the deficiencies of the Hague Convention, especially its lack of applicability in non-signatory nations as well as the role religion plays in preventing some countries from ratifying the Convention.

Part III discusses the divergent legal reasoning of U.K. and U.S. courts in cases where the Hague Convention is inapplicable either because one of the parties is a citizen of a non-signatory country or the child's habitual residence is in a non-Convention country. Part IV presents a proposal for a draft amendment to the Hague Convention that formulates a clearer "best interests of the child" standard to remedy the substantial divergence in the handling of non-Convention cases in Convention courts. As such, an explicit treaty provision would be binding on all member nations; it would be an effective method not only to attain consistency across jurisdictions, but also to uphold the ultimate objective behind the Hague Convention-to protect the best interests of the child.

Congress implemented the Hague Convention within the United States by enacting the International Child Abduction Remedies Act (ICARA),³⁴which brings the Convention provisions into state and federal family law.³⁵ICARA provides that "[a]ny person seeking to initiate judicial proceedings under the Convention . . . may do so by commencing a civil action . . . in any court which has jurisdiction of such action."³⁶The Hague Convention is automatically applicable in a signatory state by its terms, and the text of

ICARA reveals that the Act is to be "in addition to and not in lieu of the provisions of the [Hague] Convention."³⁷

I. THE PURPOSE AND OBJECTIVES OF THE HAGUE CONVENTION

A. Objectives of the Convention

The Hague Convention was created to allow for the prompt return of children to the states from which they were wrongfully removed or retained in hopes that the speedy return of the child will help avoid the harmful effects that stem from the abduction.³⁸Additionally, the Hague Convention aims to work as a preventive measure against "forum-shopping" in custody disputes by requiring that the rights of custody are respected across international lines by contracting States.³⁹Thus, under the Hague Convention, a custodial parent whose child has been abducted to another Convention country would apply to the Central Authority⁴⁰within their country of residence for the return of their child. If the claim is in accordance with the standards set forth in the Hague Convention, the claim is subsequently forwarded to the Central Authority of the country where the child has been taken.⁴¹In the United States, the Central Authority that handles all abduction cases is the National Center for Missing and Exploited Children International Division (NCMEC),⁴²which may make requests for the return of children abducted...