January 8, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Jeff Doyle, of Campbell River, British Columbia is finding out first-hand what it’s like to have a child abducted and taken to another country, in his case, Mexico. It’s not pretty. Read about it here (Courier Islander, 1/2/15).
Doyle has orders from courts in Canada and Mexico establishing him as the custodial parent of his daughter, Soffii, who’s eight years old. But that didn’t prevent his ex from absconding with the little girl to Mexico 15 months ago and not coming back.
As we know, that makes Doyle’s case one falling under the legal regime set out in the Hague Convention on the Civil Aspects of International Child Abduction. Signatories to that treaty like Mexico and Canada, acknowledge that the treaty is meant to accomplish the prompt return of any abducted child to his/her home country as soon as possible. But it seems to never work out that way in practice, and that’s particularly true when the country to which a child is taken is Mexico.
Doyle’s case is a good example. Mexican courts have already dragged the process out over 15 months and there’s no certainty it’s anywhere near completion. Meanwhile, Doyle has spent “hundreds of thousands of dollars” in legal fees alone, not to mention travel between Canada and Mexico. Once Sofii is returned to him, she’ll require therapy to deal with what her mother’s done to her. Parental child abduction has long been understood to constitute child abuse due to a number of factors, chief among which is the prolonged separation from the targeted parent.
So Doyle’s by no means finished paying for his ex-wife’s wrongful behavior. The Mexican court system, as it so often does, seems to be making Doyle’s reunion with his daughter as slow and painful as possible.
“The Mexican Government has decided to change things around in various departments so some of the people who were working on our case have been transferred,” said Doyle. “Now the courts have closed until Jan. 5. We got one day in on an appeal but now the nine days have to be added, taking us to the 14th.
The good news was two of the [motions] Cristina had filed have been squashed. Cristina and Sofii are being watched and they are not allowed to leave the area.”
Apparently Doyle believes he’ll soon prevail in his legal case and have his daughter back. With any luck, he’s right and he and Sofii can begin remaking a normal life. What will happen to Cristina, if anything, is still an open question.
But whether Mexico or some other country is the destination of the abducting parent, the simple fact is that the Hague Convention doesn’t work very well. That seems to be largely a result of the courts of signatory nations ignoring its plain terms.
The Convention’s exhortation to resolve cases quickly is routinely ignored, creating exactly what’s supposed to be avoided — a lengthy time away from the targeted parent and the attendant trauma to the child.
But more importantly, there seems to be no reason why courts of signatory nations can’t simply order the return of the child immediately. After all, there aren’t many defenses to a charge of international child abduction. Perhaps the only one that can be seriously raised is the claim that the parent didn’t abduct the child at all, i.e. that the child’s regular country of residence is the country he/she is in. In other words, the child is living where he/she is supposed to be living and it’s the parent who filed the suit who’s the attempted abductor.
In the vast majority of cases, that’s a defense that’s either not raised at all or, if it is, can be disposed of in short order. There are simply too many ways to prove long-term residency in a particular country for that to be a viable defense to an action under the Convention.
While that defense can occasionally have some validity, but usually doesn’t, others we see have none at all. Very often, the only excuse given by the abducting parent is that he/she fears the child will be abused if the targeted parent has access. We’ve seen that in the Tomasso Vincenti case in which his four daughters were kidnapped from Italy to Australia and held there for almost three years while Australian courts dithered, worsening the abuse of the children. We’re seeing it now in the case of Dorothy Lee Barnett who kidnapped her daughter from South Carolina first to South Africa and later to Australia.
Barnett is currently in jail awaiting trial in the United States, but her excuse for abducting her daughter was that she feared abuse by the child’s father. Vincenti’s ex claimed the same thing.
But there’s a simple answer to those allegations — “Raise them in the courts of the country of the child’s habitual residence.” Face it, Italian courts are perfectly capable of litigating claims of child abuse, at least as capable as are Australian ones. U.S. courts can manage the feat too.
Children abducted to a foreign country have the right to a relationship with both parents. When one parent elects to deny them that right for any reason, the kids have the right to have those claims adjudicated quickly. That’s the clear import of the Convention.
So, if there’s no question about where the children have been living, the courts of the destination country have but one task — return the children to that country and let the courts there sort out Mom and Dad’s competing legal claims.
You’d thing that would be simple to understand and simple to do, but time and again it just doesn’t happen. And strangely enough, the courts seem to never explain why. I read hundreds of pages of court documents about Vincenti’s case and not once did a judge or lawyer mention that what they were doing was completely irrelevant to the issues under the Convention.
And of course while the courts are busy doing what they have no business doing, the child abuse continues and the left-behind parents incur staggering legal fees.
One thing that would likely make things better would be if abducting parents were to suffer some sort of punishment for their abusive and illegal actions. But courts never seem to do that either. Indeed, often as not, abducting parents not only walk away from their wrongdoing scot free, but actually are rewarded. Vincenti’s ex demanded that the Italian government promise not to charge her criminally if she were to travel to Italy to visit her kids once they were returned to their father.
And it worked! The Italian prosecutor provided the Australian court a sworn affidavit promising to not charge the woman. Amazing but true.
If we want to reduce international child abduction, the Hague Convention must include punishments for parents found to have taken their children unlawfully. And police and prosecutors should bring criminal charges against abductors as well. Without that sort of punishment, it’s hard to conclude we’re very serious about stopping the abuse that is child abduction.
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