My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Tuesday, September 27, 2011
Apply – Don’t Fly. An Examination of the Hague Convention on the Civil Aspects of International Child Abduction.
Parental kidnapping is the most common form of kidnapping and it occurs when a child is wrongfully removed, i.e. without the permission express or implied, from the person lawfully exercising custodial rights at that time. The Hague Convention covers those situations in which the child is taken from his place of residence (known as his “habitual residence”) to another country. Habitual residence does not have any legal definition as such but it generally means where the child has been resident for most of his or her life prior to the kidnapping. Obviously with older children this is easier to establish whereas with very young children who have been moving around for one reason or another, it can be a much more difficult exercise. However, whether children are older or younger, it can often be quite a difficult exercise since quite often parents from one country will live in another for economic reasons only. They may have an agreement or claim that there was an agreement to return to the country of origin as soon as practical. This sort of thing can lead to a dispute as to where parties were in fact resident as in such situations it is common for one party generally the mother to be spending periods of time in her home country while the husband is away working and joining her husband occasionally. Also an agreement or alleged agreement to return to a home country can lead to a presumption of consent when it comes to taking the child from one location to another.
Speed is of the essence in responding to a parental kidnapping. The signatory countries are charged to deal with these cases expeditiously ie they must process the case quickly through their system and give it priority listing. If the left behind parent (LBP) does not take action quickly a court may view this as acquiescence or consent to a relocation of a child or children rather than a kidnapping per se. Time is also crucial in that if a good deal of time passes (generally anything longer than 12 months) a court may feel that the child has now established a new habitual residence and may not order the child returned to his or her former habitual residence. The court has a discretion in this regard. It is important to note that the court does not look at any behavioural issues surrounding the case except that those issues impact on how they must decide the case under the domestic legislation bringing the Treaty into force. Since the case is about children, the court will only look at abusive or bad behaviour in so far as it affects the welfare of the children. Therefore, even though a parent wrongfully removed a child to another jurisdiction, it is possible under the Hague Convention for that taking parent (TP) to succeed even under the Convention if too much time passed before the matter was pursued through the courts. The passage of time can be construed as acquiescence i.e the LBP was seen to have consented to the removal. This can be a shady area as sometimes a parent will have given permission for a visit but not to a permanent stay and sometimes a parent will give permission to a permanent stay and will then change their mind or the permission or otherwise is sufficiently vague for no one to be sure either way. In addition to consent impled or express or to acquiesance occasionally, the TP is able to establish that the children will be abused or harmed if they are returned to their habitual place of residence or a child who is old enough to be heard by the courts expresses a strong view that they do not wish to return to their former residence. Accordingly, while the Hague Convention is a wonderful and much needed Treaty, it does not in an of itself guarantee return since the compliance of some of the signatory countries can vary widely from location to location and it is not a catch all, in that there are defences allowed and while these are limited, it is as well to be aware that they are there.
Looking at the compliance records of various countries under the Hague Convention as far this is documented, it is as well to remember that the resources of many of the countries, who do not comply in the way that one would hope, are often severely limited. Lack of resources can result in overcrowded courts systems, under-resourced offices and administration resulting in delays which in themselves will essentially defeat the Convention. However, while under-resourcing can be a problem, there are many countries who have resources whose compliance records are not all they should be.
The US examines compliance each year and publishes its findings in glossy reports under the auspices of the Department of State, however, it does not examine its own compliance and one has to ask why not? Is there an assumption that the US is somehow above that and that they are 100% compliant and if so, those are dangerous assumptions as there are many reasons to suspect that compliance in the US is not all it should be. Because of its economic clout, it is crucial to the success of the Hague Convention that the US becomes exemplary in its compliance. The US is in a prime position to bring economic pressure on other non compliant countries or indeed to influence non signatory countries to sign up.
With the advent of increased immigration, increased travel and globalization, taking a child or children to live in another country is now far more likely than it would have been thirty years ago. Marriage and partnerships with persons from other countries are quite common and such relationships when they break down can give rise both to the reality of parental kidnap or just to the ever present fear of kidnapping. In addition, parents who feel short changed in this country by our legal system can be seduced into thinking that they should flee or take their chances in another country before another court. Sometimes people leave because they are angry, sometimes because they are fearful or panicked and sometimes just to get even. Many others are simply, unbearably lonely in a country which is, to them, foreign, when their marriage comes to an end and they yearn for their own personal families and culture. Most parental kidnappings or threats of parental kidnapping are driven by emotions. Those emotions can range from fear, desperation and loneliness to vengeance. There are occasions, but research would indicate that they are rare, when a parental kidnapping is reasoned by the parent leaving to be the only way out because they have genuine experience that the other parent is an abuser and will harm them or the children if they stay. The Convention allows for such exceptions but the standard of proof is quite high. No matter what the motive, however, whether it is fear driven or calculated, threats of and parental kidnapping causes serious harm to relationships, to trust and can cause lasting damage to the children involved and therefore, kidnapping must be viewed as a very serious matter. Panicked and upset parents do not make for good parents and where the kidnapping is conducted by an abusive parent , a parent who has had little involvement with his/her children before the kidnapping and certainly not at such an intense level, there is grave cause for concern.
Most of us have a very difficult time imagining why a parent would kidnap a child, which can only cause harm to the child, and still claim to be guided by love for that child. Frequently, parents who commit this crime will justify what they have done by denigrating the parenting skills of the other parent or will claim that their relationship with the child or children is closer than that of the other parent. Desperate people resort to desperate measures. Most people who kidnap are genuinely convinced that this is the best thing to do at the time that they do it. Even allowing for that, it is rarely a considered action in any kind of rational way and because of that it is important to leave the door open for discussions enabling a voluntary return of the children. For parents who succeed in kidnapping their children, even for a short time, I would imagine that it is only a matter of time before they realise the sheer insanity of what they have just done. Frequently such parents return the children to the LBP after a short period of time. That is why leaving the door open for some dialogue is always the right thing to do but that door cannot stay open so long that it will then defeat the necessity for speed in dealing with this matter as emphasised above.
When parental kidnapping does happen it causes enormous suffering to the parent left behind and it causes a great deal of harm to the children as well. Frequently authorities can make the assumption that because the children are with one of their parents, albeit a wrongdoing parent, the children will be ok. That is not the case. Children who are kidnapped frequently lose their identity in order to protect them from detection as well as losing their home, extended family not to mention the other parent which causes the greatest damage of all. Without good cause, it is very hard to justify such an action in the cold light of day.
Notwithstanding the shortcomings of The Hague Convention in its operation for those parents whose children have been kidnapped to a non-signatory country, the situation is nothing short of a nightmare. They are reliant on treaties being in existence between their home country and that country and that will vary widely from country to county. As I mentioned, eighty six countries has signed up to the Hague Convention to date. Some of these countries have a sizeable Muslim population and in the case of Turkey and one or two others, are primarily Muslim. However, it still remains the case that effectively the Islamic world and Asia are not signatories and are unlikely to become signatories . Probably some of the most heavily published parental kidnappings have occurred between parents, one of whom lives in the West and the other in one of the Islamic countries. Islam’s code of private family law known as Sharia specifies that all children born of a Muslim parent must be raised as Muslim regardless of whether or not the other parent is Muslim. For Muslims there is little or no distinction between religion and law. A parent failing to raise his or her children as Muslim children would be failing as a Muslim. As far as a Muslim country goes it is always in the best interests of a child to be raised as a Muslim and as long as that thinking is fundamental to thinking in that part of the world then it is very difficult to see how the Hague Convention would ever find acceptance since it goes completely against the tenor of the law and identity. Added to that are the very different legal standing afforded to men and women in Islamic cultures and their very different legal and cultural approaches to the care and custody of children. Married women in most Islamic countries will have to ask permission from their husbands to leave the country if they wish and sometimes even to travel within the country. Children over a certain age are totally within the control of their Father or their male relatives. The age when this happens varies from place to place and there is a difference between the age this happens to girls and to boys. Usually girls are left with their mother’s a little longer. All of the above will impact severely on any custody or visitation that can be exercised within the Islamic country assuming one even got that opportunity. If a woman remains married to the Muslim man her standing is very limited by Western standards and brings risks to her in re-entering that country if she has left but if she is divorced she probably has no standing at all. It is worth mentioning that a woman who has divorced and remarried whether Muslim or not, will loose all rights to her children. Dual citizenship is not recognised in Islamic countries. Accordingly, when children are wrongfully removed from a parent in the West and brought to an Islamic country, they will almost certainly not be sent back by the authorities in the Islamic country to the West. Quite often in this situation the best that can be achieved are visitation rights in the Islamic country but even if the law permits these, a Father can still decide under the code, regardless of the court order, that he will not allow such visits to take place. Many women have found themselves unable to get their children back from such countries. Sometimes, such women have had to resort to extremely desperate measures even involving the use of retired marines to assist in kidnapping the child or children back. The re-abducter, and all those involved, is then guilty of a criminal offence and if caught will face the full sanctions of the law notwithstanding that the original perpetrator got away free. It is hard to imagine the effect on the children of this sort of thing. In a post 9/11 world it is very easy to characterise this as a West v Islam problem. However such characterization will not serve us well as the tendency for the West to demonise Islam is one which vested interests in the Islamic world, not friendly to the West, tend to welcome. At the end of the day economics, education and cultural ties are more likely to resolve these difficulties than any other and that is where we should be looking. It is however, worth noting that while there is much lip service paid to Children’s Rights and indeed to Human Rights, they rarely get in the way of trade and indeed other politically vested interests and that is true of the West as much as of Islam. Accordingly, pressure needs to be applied in our backyards rather than pointing the finger overseas.
Apart from the Islamic world however, there are a number of black holes when it comes to parental kidnapping that are worth noting. Japan has an atrocious record in this area and is very much a safe haven for abductors. Given trade with Japan and the number of Japanese companies overseas, it should be possible with the right pressure to get Japan to sign the Hague Convention. That would be a big step forward but ensuring compliance is the other key step. Otherwise parents will find themselves in the same position as those children abducted to Mexico ie all the legal paperwork and processes in place but no substantive relief to be had, only an expensive road to nowhere. Mexico, while a signatory to the Convention, has a very poor record as does Brazil, Bulgaria, Bermuda, Honduras, Bahamas and St Kitts. However, this is all from the point of view of the US and the experience of European countries one with the other is not documented. There are strong feelings, however, that national interests are too often a priority and cooperation between certain countries virtually non existent as appears to be the case between Germany and Poland for example. It would seem obvious to me that in the case of many of those countries mentioned by the US in its most up to date report, under funding is probably at the heart of most of the problems but there may be other national factors also. There are other countries giving cause for concern but the main difficulties identified in most of the countries with a poor track record who are signatories are delays at all stages being the Central Authority stage, the judicial stage and the law enforcement stage.
Many countries do not recognize international abduction and retention of children as a criminal offense. The recognition of this would allow for extradition treaties in some cases. It is worth noting in passing that while it is a crime to abduct a child from the US, it is not a crime to abduct a child into the US and that would be mirrored widely on the international stage. In addition, making it feasible in all countries signing, for parents whose children have been abducted to process their claim with the assistance of free legal aid in any of the signatory countries, would ensure considerably less hardship for LBPs to take action and would test the mettle of the signatory countries as to how seriously they really take this issue. All the signatory countries need to do compliance reports each year for a true picture to be gained of the extent of the problem and how it is being experience and dealt with on the ground.
In Ireland more children are abducted into Ireland then removed and this in and of itself gives cause for concern. If Ireland is an attractive place for children to be abducted into, that suggests we are abduction friendly to some extent and we need to examine that. In Ireland, legal services for those whose children have been abducted are arranged through the Irish Central Authority with the Legal Aid Board Solicitors exclusively. That means that LBPs whose children have been abducted into Ireland do not have to face horrendous legal bills at any rate. There are undoubtedly substantial other expenses involved such are air travel, accommodation and so forth. TPs can apply for legal aid in Ireland but must qualify under the means test for same and if they do not, will have to be privately represented. The role of private solicitors in abduction cases tends to be limited to those parents who decide they wish to be privately represented or a parent who removed the child and is not eligible for legal aid or a non-Irish lawyer seeks legal opinion in relation to Irish Law. For example, a removal or retention is wrongful under Article 3 if it is in breach of custody rights that were actually exercised or would have been but for the removal or retention. “Rights of custody” are defined according to the law of the country in which the child was habitually resident immediately before the removal or retention. In addition, applications under Article 21 of the Convention which relate to access rights are not legally aided. A parent whose child has been abducted to Ireland or a parent whose child has been abducted from Ireland should immediately contact the Dept of Justice Equality and Law Reform at Bishop Square, Redmond Hill, Dublin 2 and pursue the matter from there.
It is worth remembering that while international abduction is a very serious problem and is on the increase, the number of overall kidnappings is still quite small. There are a number of indicators that would allow a person to estimate the risk in each situation. These indicators have been compiled by profiling over a number of years based on various case studies. As I have said prevention is probably the best strategy to adopt. I intend to write another article on these two points very soon.