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13

Aug

2021

Abducting their own children

 
 

Media reports regularly note the despair and distress caused to a parent when their erstwhile partner absconds with the children of their prior relationship. Law enforcement agencies are routinely involved to compel the return of these children, abducted by one of their own parents, as are the courts when either issuing orders relating to the custody of the children or possibly punishing the absconding parent. Within a nation state the appropriate domestic authorities can be relied upon to enforce the relevant laws, as they happen to exist, and ensure the welfare of the children is upheld. The sheer affordability of travel and ease with which persons can now move between continents, let alone cross proximate borders, mean that a parent abducting his or her own children is more likely to be successful in evading the reach of domestic authorities if they leave the state where their personal relationship with the other parent has broken down. Statistics compiled by many foreign ministries and international organisations reveal that international parental abduction is commonplace, indeed relatively few stories make the headlines. Abducting parents tend to take children to states with which they have a connection of some sorts. In the past it was often assumed that the typical parental abductor would be the disgruntled father who had not been awarded custody. Regardless of whether that was ever actually accurate, it is clear that the issue is now global in scope, multi-faceted and there is no stereotypical abductor. A father may abduct his children from Australia, where he had been living as part of a family, and take them to Lithuania, without the mother’s consent, to lead a new life in his state of origin. Equally, a mother living in Sudan with her family may abduct her children and seek to escape a violent marriage by returning to Canada, where she was schooled.

The variety of circumstances and the sheer number of permutations regarding the countries involved, means that any legal regime seeking to deter international parental abductions can only conceivably be acceptable to all states if it does not pass judgement on the acceptability of the legal, cultural, social or religious assumptions involved in child custody disputes in the states in question. The further question is whether the abduction is deemed to be a criminal offence and thus punishable, potentially with a custodial sentence, or a civil matter to be dealt with by the family or other courts, should that distinction exist. In seeking to address parental child abductions, states take different approaches to such matters, although a central tent of international human rights law is that the best interests of the child are to be the primary consideration in determining any issues relating to the children themselves. What is deemed to be in the child’s best interests will differ significantly across the globe, as will assumptions about the suitability of a particular parent. Where parental abductions are challenged before the courts of the state of refuge numerous matters come into play. Should, for example, the courts in the state of refuge assert their jurisdiction over the substantive matter or not? If they do: does the abduction disqualify the abducting parent from being awarded custody of any children otherwise he or she benefits from their wrong doing; what is the relevance and status of any court decisions made in another jurisdiction relating to the children; and is the past conduct of a parent – for example extra-marital infidelity or domestic violence – relevant to any judgment. These are complex considerations and there are a number of balances to be struck. In 1980, the Hague Conference of Private International Law adopted a convention addressing the civil aspects of parental child abductions. In 1989 the Organisation of American States adopted a similar convention for states in that region only. In both cases the conventions have primarily been accepted by states which can broadly be described as culturally European – although there are, of course, significant differences between them. Both these conventions work on the assumption that any children abducted by a parent are to be immediately returned by a court in the state of refuge to the state from which they were abducted. In both conventions the matter is deemed to be civil and not criminal and that domestic courts before whom matters arise relating to abducted children are not to exercise jurisdiction over the substantive issue. Rather the courts are to order the immediate return of the children to the (other contracting) state from which they were wrongly removed. This also reverses any advantage the abducting parent may have sought to obtain by ensuring the issues are resolved according to the law of usual residence.

While the conventions are undeniably successful on their own terms, there are large geographical gaps in terms of coverage. The Hague Convention, which is potentially universal in scope, may work reasonably well between Denmark and Germany, for example, but it cannot obviously work between one state who is party to it and another which is not. Moreover, there is an absence of any regime at all relating to scenarios where neither state is a party to any such convention. Where some African and Asian states have joined the Hague Convention, the question arises as to the acceptability of their approaches to family law matters and related assumptions in those states. There may also be assumptions about the validity of the testimony of women due solely to their gender and other human rights considerations to take account of in ordering a return to certain states, even where both states – that of refuge and residence – are parties to the convention.

International parental child abduction raises pressing and very real problems about the welfare of children who are unwittingly caught in the cross-hairs between former partners. Self assumed superiority, especially around culture, does not lead to workable and inclusive outcomes. International law can provide some solutions but in the field of family law, in particular, where there are social, cultural and related assumptions at play those need to be scrutinised and questioned – by all – if there is to be inclusive universal collaboration and cooperation to tackle a widespread and distressing phenomena.

Jurisdictional Exceptionalisms by Anver M. Emon and Urfan Khaliq

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About the Author: Urfan Khaliq

Urfan Khaliq is Professor of International and European Laws and Head of School in the School of Law and Politics, Cardiff University. His publications include Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal (Cambridge, 2008) and International Human Rights Law Documents (Cambridge, 2018)....

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About the Author: Anver M. Emon

Anver M. Emon is Professor and Canada Research Chair in Islamic Law and History at the University of Toronto, where he directs the Institute of Islamic Studies. A Guggenheim Fellow and member of the College of the Royal Society of Canada, he has published widely in Islamic law and history....

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