The problem of parental child abductions is exacerbated by a number of factors. Ironically, the Hague Convention on the Civil Aspects of International Child Abduction seems to be one of them, as this article
shows (Sydney Morning Herald
I've detailed some of the other factors that militate against "left-behind" parents. Chiefly, the Convention's signatory nations often seem to ignore its terms. One of those is that children are to be returned within 60 days of being found in the country to which they've been taken. But time and again, we see countries like Mexico and Brazil behave as if (a) there were no such provision in the treaty or (b) the treaty doesn't exist.
So people like Sean Goldman spend years of their lives fighting long distance with a foreign government trying to get it to abide by the clear terms of a convention it signed.
Then there's the generally useless nature of the U.S. State Department to which Americans are supposed to turn for assistance in that fight. But those who try to get some of that assistance are in for a shock. As many people have told journalists and some have testified under oath to Congress, the U.S. State Department acts like it has bigger fish to fry. As one father wistfully said about his child's abduction to Mexico,
"I also remember thinking to myself that somehow I would be protected," Richardson said. "Protected by our laws, and our courts, and our law enforcement, our government, the FBI.'
Now he knows better.
But the linked to article lets us know that the Hague Convention, in addition to everything else, is itself part of the reason for the failure of courts to return children to their left-behind parents. And of course, what that means is that the Convention, at least as some courts interpret it, is part of the problem, not part of the solution. In some cases, it makes abduction easier and more likely than it otherwise would be.
In the case described in the article, an Australian man and a British woman were married and had two children, now aged eight and two. They lived in Sydney, but the mother pronounced herself "homesick" and wanted to move back to England for a year. Her grandmother had willed her a small house in the north of England, and so the four packed up for the U.K. for a year.
At the end of the year, the father kept to their plan and returned to Australia, but the mother and kids stayed behind. She convinced him that she would be coming along shortly, but courts later ruled that to be a lie.
[T]he mother had "lulled the father into a false belief" that she and the children, who cannot be identified, would return.
Her "continuing deceit" included sending her partner, whom she met in Sydney but never married, "a Valentine card in loving terms and equally affectionate birthday card", said Lord Justice Ward.
When the dad figured out what was going on, he filed suit in England to get his children back and the trial judge so ordered.
The father launched a legal action under the 1980 Hague Convention on Civil Aspects of International Child Abduction, which provides a procedure for the return of children involved in custody disputes across international boundaries.
Last July, Family Division judge Mrs Justice Hogg ruled in favour of the father and ordered the children's return.
Not so fast said the appellate court last Monday. Mom gets to keep the children despite the clear meaning of the Hague Convention. Despite, or because of ?
The Convention has a concept of the child's "habitual place of residence." That means that wherever the child has usually lived is the place he/she must stay. It's a vital concept for figuring out if a child has actually been abducted or not. After all, if two parents live in the United States, move for a year to, say, England, and then return to the U.S., one parent shouldn't be able to go to England and claim the other parent has abducted the child. The child's habitual place of residence is the U.S.
It's a simple, reasonable concept that the British appellate court managed to stand on its head.
But on Monday Lord Justice Ward said the judge had gone wrong on the key issue in the case: whether the children were "habitually resident" in Australia at the time the homesick mother decided to keep them in England.
He ruled their stay in the UK had become permanent enough to establish they were habitually resident here, even though they would have been bound to say "our real home is in Australia".
So never mind that the stay was always supposed to have been temporary. Never mind that the kids see that their "real home is in Australia." Never mind that one child is eight years old and had spent at most one year in England when Mom decided to stay there. And never mind that the whole thing was brought about by fraud on the part of the mother that the court readily acknowledged.
No, Mom gets to keep the kids because the judges allowed a part of the Convention meant to establish the children's home country to be used to thwart the purpose of the Convention. Put another way, the decision is an open invitation to abducting parents. It says loudly and clearly, "Go ahead, abduct your kids and if you can just do it for a long enough time, you're home free." And indeed, the time needn't be long at all.
The judge said case law stated that residence could be "of long or short duration", provided it was adopted "for settled purposes as part of the regular order of life for the time being".
That's not exactly a high hurdle to clear. An abducting parent could live in one place "for settled purposes as part of the regular order of life for the time being" for almost any period of time and, according to this court's ruling entirely defeat the very purposes of the Convention. Those are the prevention of child abduction and the return of those children who have been abducted.
It's hard to see how, given that standard, an abducting parent could fail to establish habitual residence wherever he/she might come to rest for however short a time.
It's also hard to see the court ruling the same way if the abducting parent were the children's father. I can't imagine that such a campaign of lies and deceit by a father, waged for the sole purpose of wresting custody of the children from their mother, would be met with such judicial equanimity.
Sitting with Lord Justice Longmore and Lord Justice Sullivan, the appeal judge described the case as "sad but not untypical".
That's a pretty accurate description and condemnation of Hague Convention proceedings generally.