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October 25th, 2012 by Robert Franklin, Esq.
It’ getting to the point where a mother can’t abduct her children to a foreign country and deprive them of their father’s love.  And, according to this article, there’s a problem with that, although it never explains just what the problem is (The Guardian, 10/19/12).  Yes, to The Guardian‘s writer, international agreements about parental child abduction to foreign countries pose a unique burden on mothers.  It’s all so unfair!

Filled with non-facts and non-figures, the article wants us to sympathize with mothers who move from England with their families and, when the husband-wife relationship breaks down, feel entitled to take the children back to England and deprive them of their dads.  As a brief for mothers’ privilege, it’s about as frank as it gets.  As with so many other articles we’ve read far and wide about international child abduction, there’s no sense on this writer’s part that the courts of Spain or Portugal, for example, are capable of deciding custody issues.  Of course they do exactly that every day for the people of those countries, but in a way never explained by the Guardian, that’s just not good enough for English moms.

And of course there’s the utterly frivolous claim that this all affects mothers more than fathers.  Yes, the Hague Convention on the Civil Aspects of International Child Abduction is written in gender-neutral language, but in some way (again not explained), it’s mothers who suffer from the rulings of courts construing that law.

Indeed, the article’s headline reads “Mothers Lose Out as Expat Parents Fight for Custody in Foreign Courts,” but offers not a single example in which that’s occurred.  One case the article mentions involved a British mother who married a Spanish man.  They lived in Spain and had three kids, but then separated.  She recently took the children on holiday to England and decided to stay.  The English court rightly ruled that the children had to be returned to their father in Spain.  That’s because Spain is the country of habitual residence and therefore, under the Convention, Spanish courts must rule on custody, if they haven’t already.

Now, according to The Guardian, that constitutes the mother’s “losing out,’ but of course she’s lost nothing beyond the power to deprive the father of his kids and the kids of their father.  That’s a power she shouldn’t have and doesn’t have under applicable law.  Neither does the father.  Some court somewhere has to decide the issue of custody, and in her case that court happens to be in Spain.  There’s nothing remotely unfair or anti-mother about that unless you labor under the preconceived notion that a mother should be able to do what she wants with the kids, where and when she wants to do it.  And if that means depriving them of their father, so be it.  Frankly, that looks like a fair description of the writer’s point of view.

The fact that the Hague Convention in no way disadvantages mothers should be plain enough and the article’s claim that it does is significantly undercut by the entire absence of data on the subject.

The precise circumstances surrounding this case are not clear. However, in the past year, British consular assistance for help in child residence cases involving a partner from another country has been sought 17 to 29 times each month. There has been no rise in the total number of cases, but experts say there is one area where cases abroad are increasing, albeit one in which no statistics are collected and no records kept.

John Mellor, service manager at Children and Family Court Advisory and Support Service (Cafcass), who specialises in cases of child abduction and international relocation, says he is seeing an increasing number of cases where a British couple split up after moving abroad with their British children.

So, there aren’t any statistics on the matter, but one person claims to see an increase in British couples splitting up after moving abroad.  Maybe he’s right, maybe he’s wrong, but again, Mellor offers not a single example and never says which parent it is who wants to return to England.  Are there more mothers or more fathers?  He doesn’t say and so the article’s entire thesis collapses in a heap.

Still, Mellor soldiers on.

When one parent – usually the mother – wants to return to the UK with the children, Mellor says he or she finds out too late that the children are under a foreign jurisdiction and the British courts have no say over their future.

“Usually the mother?”  His evidence for that is non-existent, but the article takes the claim at face value.  But even if he’s right, his claim is that, in some way, mothers (but not fathers) have no idea that living in a foreign country subjects them to the laws of that country.  To put it mildly, that’s arrant nonsense.  It’s far beyond rational belief that any adult doesn’t understand that, much less that fathers do but mothers don’t.

The Guardian: Mothers Insufficiently Privileged by International Custody Law

The indignation about mothers being insufficiently privileged under the law extends to the attorney, Anne Marie Hutchinson.

“It happens in the UK too,” she added. “There are lots of eastern European women who came over to Britain with their families when the economy was strong. They want to go back home to their friends and families but their husbands won’t let them take the children.”

No, actually it’s not the husbands who won’t let them abduct their children to a foreign jurisdiction, it’s the law.  You’d think a lawyer would know that.  You’d also think she’d know that the scenario she described of eastern European women coming to England applies equally to eastern European men who, when their relationships break down, want to return to their home countries, but can’t take their kids.  But, as is so often the case with The Guardian, the concept of gender-equality has gone missing.  The article, and the people it quotes, are determined to pretend that failure to grant extraordinary privileges to mothers constitutes unfairness toward them.  It’s amazing, but true.

At the very end though, the article does give a casual wave in the direction of reason and balance.  Alison Shalaby is acting director of the UK charity Reunite, that deals with international parenting issues.

“It’s not about nationality or passports: by moving to a foreign country with a settled purpose, you are changing your children’s country of habitual residence,” she said. “That can happen after just a couple of months.

“If parents can’t decide where their children should live, the best-placed country to make that decision for them is the country of their children’s residence,” she said. “If you choose to live in another country, you have to abide by the laws of that country.”

What a concept.  In fact it’s one that every adult save the writer of the article understands perfectly well.  But when it comes to mothers and children, it seems there are always those who are willing to toss reason, fairness and above all, gender-equality out the window.

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