International Child Abduction: When the Abductor is the Parent

The Hague Convention was drafted on October 25, 1980, to combat the overwhelming number of non-custodial parent-child abductions.[1] The purpose of the convention was to prevent non-primary caregivers from kidnapping their own children and escaping to another country, where they could obtain a custody order to keep the child in a foreign country.[2] To date, 83 countries are currently parties to the Hague Convention.[3] A set of uniform standards and defenses, consisting of 45 articles,[4] were drafted to further the best interests of the child abducted by a non-custodial parent.

First, the drafters of the convention wanted to prevent abductors from forum shopping in countries where legal systems are more sympathetic to the abducting parent. [5] However, a country that is not a party to the convention may leave the left-behind parent with few, if any, options to recover his or her child.

Second, the drafters of the convention aimed to expedite the judicial process so that children would be returned in a timely fashion.[6] According to the latest statistics, it takes an average of over 227 days for resolution of a petition filed in the United States.[7] Globally, resolved disputes on the basis of a judicial return order could take up to an average of 166 days to be resolved.[8]

Finally, the drafters intended to prevent non-custodial parents from abducting their children with impunity. However, the latest statistics show that primary caregivers, statistically mothers, are more likely to abduct their children. According to surveys conducted by the Hague Convention, “(i)n 2008, 59% (168) of persons taking children to the USA were mothers and 38% (108) fathers, compared with the global average of 69% and 28% respectively.”[9]

Raising Defenses to the Hague Convention

When a left-behind parent files a petition to have their child returned, the abducting parent may respond by raising affirmative defenses to the petition. Under Article 13 of The Hague Convention, “(t)he judicial or administrative authority may … refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”[10] Specifically under Article 13b, this provision also allows for an affirmative defense called “grave risk of harm.” This defense is commonly raised when a court finds that “wrongful retention” has occurred by the abducting parent.[11] Many abducting parents raise this defense as an effort to prevent a judicial return order from the court.[12]

 
Grave Risk of Harm

According to the Hague Convention of International Child Abduction, Article 13b, the abducting parent bears the burden of proving that a judicial return order will subject the child to a “grave risk of harm”. [13] The Sixth Circuit has established a threshold for courts to determine whether a grave risk of harm exists. According to the precedent, a child is at grave risk for harm when they are in imminent danger—for example, returning to a war zone, famine, or disease—before a custody agreement concludes, and second, where there is a serious case of ongoing physical or emotional abuse, or neglect in the child’s habitual country of residence. [14] After establishing these factors, the court must decide whether the habitual country will be able to protect the child from further harm.[15]

Precedent

Although American federal courts have not established a bright line threshold to follow, recent rulings have established consistent standards to which other courts may model when an alleged battered woman raises an Article 13b defense to a petition to have a child returned.

Two recent standards have been recently established called the Abbott standard and the Walsh standard. [16] The Abbot standard looks to ‘ Whether it was sufficient to show that the child would suffer “psychological harm” or to be placed “ in an intolerable situation.”’ [17] The Walsh standard looks at whether the quantum risk of harm is high by analyzing physical and psychological abuse by the spouse, the longevity of the spousal abuse, whether the spouse has engaged in physical altercations outside the home, and the noncompliance of court orders.[18] Along with these two standards, the court considers the credibility of the parents’ testimony, expert testimony, longevity of abuse, whether the child has witnessed the abuse, and most importantly whether the child has been physically or psychologically abused.

Analysis

The Hague Convention on International Child Abduction is flawed in preventing further domestic violence and abuse on women and children. Over the last twenty years, U.S. courts have consistently sent children back to their habitual countries because of abducting parents’ failure to prove “grave risk of harm” through “convincing and compelling evidence.”[19] Therefore, battered women with children seeking refuge in a different country must provide adequate documentation of abuse according to these standards.

The current standards in place to prove “grave risk of harm” leave battered women with little to no remedies. These women must either endure the abuse if it is not directed towards the child or wait until the abuse becomes so severe that witnesses, including the child, can step forward. [20] In more extreme circumstance, children who have experienced the alleged abuse can testify to the “grave risk of harm” the serial abuser poses to the un-abused child. [21] In addition to these standards, even an admission of abuse by the abuser may not warrant a denial of judicial return order if the court determines that the child is not in imminent harm.[22]

The convention should be revamped to include three levels of abuse and remedies to which an abused mother can safely return to her home country without the fear of continued abuse or prosecution for abducting the child to another country.

Disputes that are determined to not be threats should receive little to no remedies other than the judicial return back to the habitual country of residence. Disputes that are determined to be low threat should be evaluated on a case-by-case basis by adequately showing that there is a “grave risk of harm” if the child is returned back to their habitual country of residence, but not so much risk that alternative mediation can resolve with court guidance in their habitual country of residence. This would give mothers in less dangerous situations a remedy to adequately protect themselves and their children.

The Sixth Circuit denied a father’s petition for return by determining that the “grave risk of harm” rose to the “middle category.” Specifically, the court focused on, “(A)t precisely what level would return expose the child to a “grave risk” of harm or place the child in an ‘intolerable situation’” [23] Here, the court found that the abuse consisted of “both physical (repeated beatings, hair pulling, ear pulling and belt-whipping) and psychological (the father’s profane outbursts and abuse of the children’s mother in their presence)” abuse. [24] This is an example of the framework that should be evaluated and expanded upon to combat the growing number of domestic violence victims, who feel trapped in their country of origin.

Although the level of severe abuse here is categorized as “middle category,” this level of abuse should be categorized as a prime example of a grave risk of harm.’ A case that falls within the “middle category” should instead be determined by the amount of physical or emotional abuse the primary caregiver has endured that has not yet affected the child. Numerous cases fit this mold and simply get tossed aside because the mother has endured the brunt of the abuse.

Given these points, the purpose of The Hague Convention on International Child Abduction is premised on the best interest of a child; therefore the convention should implore that a mother’s safety should be in the best interest of a child. By denying battered women any kind of remedy, the drafters propose that having an abused woman, as a mother doesn’t pose a grave risk of harm to a child’s development.

 

Shani Walker is a 2L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

 

[1] 28. Convention On The Civil Aspects Of International Child Abduction, http://www.hcch.net/upload/conventions/txt28en.pdf.

[2] Paula Shulman, Note, Brazil’s Legacy Of International Parental Child Abduction: Mediation Under The Hague Convention As A Solution, 16 Cardozo J. Conflict Resol. 237,238 (2014).

[3] U.S. Hague Convention Treaty Partners, http://travel.state.gov/content/childabduction/en/country/hague-party-countries.html.

[4] See supra note 1.

[5] Barbara E. Lubin, Note, International Parental Child Abduction: Conceptualizing New Remedies Through Application Of The Hague Convention, 4 Wash. U. Global Stud. L. Rev.415, 420 (2005).

[6] Id. at 422.

[7] A Statistical Analysis Of Applications Made In 2008 Under The Hague Convention Of 25 October 1980 On The Civil Aspects Of International Child Abduction, Pg. 206, http://www.hcch.net/upload/wop/abduct2011pd08ae.pdf.

[8] Id.

[9] Id.

[10] Tracy Bateman Farrell, Construction and Application of Grave Risk of Harm Exception in Hague Convention on the Civil Aspects of International Child Abduction as Implemented in International Child Abduction Remedies Act, 42 U.S.C.A. § 11603 (e)(2)(A),56 A.L.R. Fed. 2d 163, *2.

[11] See supra note at 10.

[12] Id.

[13] Id. at *2-3.

[14] Id.

[15] Id. Citing Friedrich v. Fredrich, 78 F.3d 1060, 1996 FED App, 0085P (6th Cir. 1996).

[16] Id. at *25.

[17] See Abbott v. Abbott, 130 S. Ct. 1983, 176 L.Ed. 2d 789 (2010).

[18] See supra note at 16.

[19] See Charalambous v. Charalambous , 627 F.3d 462 (1st Cir. 2010).

[20] Elyashiv v. Elyashiv, 353 F. Supp. 2d 394 (E.D.N.Y. 2005).

[21] Id.

[22] Lachhman v. Lachhman, 2008 WL 5054198 (E.D.N.Y. 2008).

[23] See Nunez – Escuero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995).

[24] Simcox v. Simcox, 511 F.3d 594, 2007 FED App. 0502P (6th Cir. 2007).

Commercial Whaling: A Brief Explanation and a Call for Better Legal Solutions

Every year, over 2,000 whales are killed due to commercial whaling. While this may not seem like a large number, the major issue is that many of these whales are a part of an endangered species. Despite a Convention that is already in place, three countries still allow commercial whaling. Overall, better legal solutions are needed to protect whale populations, particularly endangered ones.

To help conserve whale populations, in 1946, the International Convention for the Regulation of Whaling was created and the International Whaling Commission (“IWC”) was formed as a result of that Convention. The IWC itself has 88 member governments. In addition, this “Convention includes a legally binding Schedule which . . . sets out catch limits for commercial and aboriginal subsistence whaling.” The IWC can amend these limits, and, in 1986, the IWC banned commercial whaling. This action is commonly known as the commercial whaling moratorium.

Despite the 1986 moratorium, Japan, Iceland, and Norway have continued to allow commercial whaling. Japan, for example, argues that Japanese commercial whaling falls under a Convention loophole that allows commercial whaling when it is done for scientific purposes.

Both Norway and Iceland, which are members of the IWC, protest the moratorium. Norway, for example, followed the IWC ban until 1993 when it set limits on commercial whaling, but Norway allowed the practice to continue. Similarly, in 1992, Iceland withdrew from the IWC, joined the IWC in 2004, and continued commercial whaling starting in 2006. In 2010, commercial whalers in Iceland, for example, have killed and shipped 750 tons of product made from whale meat to Japan. This is a serious matter since commercial whalers in Iceland tend to go after Minke and Fin whales, and, in 2010, Icelandic commercial whalers killed 148 Fin whales, which are endangered. Overall, these three countries also argue that they should be allowed to perform commercial whaling because of their countries’ histories in whaling, despite the ban.

Several solutions have been offered to further protect whaling populations from commercial whaling, despite these three countries’ continual practice. For instance, as she discusses in an article for Arizona State University, Dr. Leah Gerber, a marine conservation biologist at Arizona State University, argues that monitoring and regulations could curb the number of whales killed each year due to commercial whaling. For example, Dr. Gerber argues that commercial whaling does not severely harm all whale populations, but some populations, such as one population of Minke whales (in the Sea of Japan, Yellow Sea, and East China Seas), have been negatively impacted by commercial whaling. In contrast, animal rights groups tend to call for trade sanctions, but this approach may be too difficult, because of the economic impact of commercial whaling on these countries’ economies. Because of this impact, trade sanctions may be too harsh and unnecessarily harm these countries’ economies.

However, stricter enforcement needs to be put in place. Iceland and Norway already report commercial whaling numbers to the IWC. For example, in 2013, Norway was responsible for commercial whaling of 594 whales, and Iceland was responsible for 169. Because Japan is allows commercial whaling due to a legal loophole, the simplest solution would be to eliminate the loophole in the Convention that allows for scientific research. While this could be a slippery slope, closing the loophole could prevent commercial whaling or, at a minimum, reduce commercial whaling. While Norway and Iceland protest the moratorium and provide commercial whaling numbers, the IWC should place greater restrictions on commercial whaling limits, at a minimum. For example, perhaps the Convention could be modified to place even greater limits on the number of whales killed by commercial whaling in Norway, Iceland, and Japan. No matter what the solution, more attention needs to be drawn to this issue, and legal steps are needed to reduce commercial whaling, if not completely eliminate it.

Kelci Scirrotto is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.