Seeking Reform of the Hague Convention on the Civil Aspects of International Child Abduction

Alejandra Salmeron
Vol. 39 Managing Editor

Family law permeates many major contemporary international issues, yet it is rarely discussed alongside international law. Issues at this cross-section are full of complexities and curious combinations of international law and domestic custody law.[1] Custody disputes under The Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) are a particularly relevant and increasingly prevalent example of this intersection between family law and international law.[2] Cases brought under the Convention bring to light the difficulties that institutions face when applying laws, crafted at the international level with a broad mission to the domestic and local levels.[3] Though helpful in the fight against child abduction, the Convention is not without its limitations. A stronger scholarly movement for review and reform is necessary. The Convention is a multilateral treaty designed to protect children from “wrongful removal or retention” to other countries not their own and to institute measures that will enable the return of the child.[4] Today 81 countries, including the United States, have adopted the treaty.[5] The Convention is mostly procedural in content[6] and seeks to halt and take away “any legal advantage actual and would-be abductors might hope to derive from such actions…thereby safeguarding the best interests of the child”.[7] The treaty requires, among other things, that when a child has been “wrongfully” removed from his or her country of “habitual residence” across international boundaries, the child be returned when a petition under this Convention has been filed.[8] Additionally, the courts in the habitual country of residence will have jurisdiction in order to make the substantive determinations on custody, though limited exceptions and restrictions exist.[9] The functioning of the convention requires cooperation and coordination between a vast array of domestic and international players, ranging from local police forces to state and federal courts.[10] The difficulties of coordinating all of these key participants makes it easy for nations to escape their obligations under the Convention.[11] Reform is necessary to better this coordination and increase its effectiveness by reducing the lengthy, complicated and traumatic international custody battles that result today. While the Convention’s aim is valuable, its application has demonstrated considerable weaknesses and complications. Some condemn the fact that the Convention only protects children until they are sixteen years old.[12] Furthermore, critics stress the graveness of the lack of compliance mechanisms, which greatly facilitates a nation’s ability to disregard the Convention.[13] Others highlight one of the Convention’s biggest shortcomings: its failure to anticipate that many abductors would be victims of domestic violence fleeing their abuser.[14] The Convention was not written with this possibility in mind and can often lead to unfair and dangerous results in those situations.[15] This is further complicated by the fact that some courts have taken it upon themselves to remedy the use of the Convention to avoid its application in cases involving abuse and domestic violence.[16] Though this ultimately reaches the right outcome for the child, critics highlight that this weakens the treaty as it goes against the goal of uniformity sought by the Convention.[17] These problems are significant and require action. A few suggestions to improve The Convention have been put forward. These include the creation of an enforcement mechanism that might include a common jurisdictional requirement[18] as well as economic and diplomatic pressures on countries that tend to avoid their responsibilities under the treaty.[19] Additionally, measures to protect victims of domestic violence have also been suggested, like staying the remedy of return,[20] permitting the litigation of custody by the abductor from a safe location,[21] and creating a defense for victims of domestic violence.[22] However, in paling contrast to the dramatic increase of cases arising under The Convention, the issue is not receiving as much attention as it should. More research and a stronger push by scholars to explore potential remedies are essential in order to create the necessary momentum for change. This is the basic starting point, and both scholars in the international law community and experts in family law (from all ratifying countries) should explore this matter further in a concerted effort to improve the already established framework of this significant treaty.

[1] Id. at 534. [2] Katharine L.Tyler, Note, International Custody Battles: The Not So Curious Case of David Goldman, 12 J. of L. & Fam. Stud. 533, 533 (2011). [3] Linda Silberman, Interpreting the Hague Abduction Convention: In Search of A Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1079-82 (2005). [4] Rita Wasserstein Warner, International Child Custody and Abduction Under the Hague Convention, Int’l L. Practicum, Spring 2010, at 50. [5] Id. [6] Ion Hazzikostas, Note, Federal Court Abstention and the Hague Child Abduction Convention, 79 N.Y.U. L. Rev. 421, 422. [7] Id. at 423. [8] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, S. Treaty Doc. No. 99-11, (1983). [9] Id. [10] Id. [11] Keelikolani Lee Ho, The Need for Concentrated Jurisdiction in Handling Parental Child Abduction Cases in the United States, 14 Santa Clara J. Int’l L. 596, 604 (2016) [12] Monica Marie Copertino, Hague Convention on the Civil Aspects of International Child Abduction: An Analysis of Its Efficacy, 6 Conn. J. Int’l L. 715, 731 (1991). [13] Tyler, supra note 1 at 538. [14] Merle H. Weiner, Navigating the Road Between Uniformity and Progress: The Need for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 33 Colum. Hum. Rts. L. Rev. 275, 277 (2002). [15] See Weiner, supra note 10 at 278. [16] Id. at 279. [17] Id. [18] Tyler, supra note 1 at 542 (“[A]n amendment to the Hague Convention could provide a jurisdiction where countries could take disputes, like the International Court of Justice, to obtain a decision.”). [19] Id. at 541. [20]Merle H. Weiner, International Child Abduction and the Escape from Domestic Violence, 69 Fordham L. Rev. 593, 698 (2000). [21] Id. at 699. [22] Id. at 692-698.