I Abstract
The Hague International Child Abduction Convention was adopted in 1980 at the Fourteenth Session of The HagueConference. The focus intended in this research is to provide a brief overview of the structure of the Convention, to highlight a number of issues that have surfaced in the interpretation of the Convention in the courts, both in the United States and abroad, and to offer some observations about the use of the Convention. The law sees parents as two distinct legal entities whose role in the parenting process is decided by the Courts as a decree. Hinged on the joints of “abducted custody” and “custodial home”, this Convention has altered the role of parents-one who has custody is the “custodial parent” and the other is called the “visiting parent”. Over the years, the Convention draws on itself a bias that the “visiting parent” feels motivated to abduct the child, usually fleeing with the child to his home country across international frontiers, where he becomes the subject to the Sovereign authority and habitual obedience to the law of the respective Country. The study flourishes through by maintaining an equivocal stand on this issue by finding pacifying solutions to resolve the cause of abduction. The study finds to objectively deal with the issue of the Courts in giving too little to no attention to the psychological inclination of the child rather than what the Court deems fit by giving fictional legal status to the child who in most part of the law, below the age of seven, is not considered to be a legal entity. Also, it is understood by drawing an inference on the cases that are elaborately studied in the research that Courts seems to build a cultural superiority between the husband and the wife, which finds greater expression in the landmark judgements of the Convention. This corresponds to also the unequal treatment of international migrants in the host countries, which, on the majority, is seen to work, diametrically opposite to their interest
- The Structure of the Convention
And the Implementing Legislation
- The Return Policy of Children
The Hague Convention of 1981 which has the concept of “Child Abduction” which is perhaps the greatest contributions of The Hague countries who came in together to realize this problem of child abduction. In such situations, the child when passed over for safe keeping to a particular parent, the other parent, who is not economically or socially well off, is denied the custody of the child.[1] It is central to note that the Convention is very clear on its return perspective which talks about the stringent return of the child from whichever place he or she has been abducted[2]. The return should be prompt and there then comes the legal action when initiated to by the custodial parent whose child has been so abducted in the original habituation of the child.When the Court has made a judgement on custodial limitations of the child[3], no parent cannot violate the terms of the agreement meted to by the Court.
The State has recognized the importance of “custodial rights” of the children and has dealt with the breach rather severely.[4]The court does not however, allot any legal guardian surprisingly to the child in the journey of child retrieval and child return.The Convention in Article 12 has clearly mentioned that the return of the child may be subject to various conditions.The State will decide whether to overrule the decree as passed by the Court in this regard to order return[5].
- The Role of Central Authorities as an agency-
The Convention, when simply put, serves as a guideline as to how an international abduction of a child can be tackled smoothly without any greater loss.[6] The Central authority, at the outset, is just an agency as nominated by the Convention and there are no additional costs that need to covered by the petitioners[7].
- Federal Implementing Legislation of the United States
It is to be noted that there are many other legislations that have been enacted to work with the implementation of the Convention.[8]
- Case Law under the Convention
- A. The Requirements of a Wrongful Removal or Retention in
Breach of Custody Right
As it is clearly evident in the case of David S. v. Samira[9], the separation agreement had already been settled by the parents and their case was deemed to be a case of violation of the custodial rights of a parent. The Court then observed, that there is a thin line of difference between self-evident custodial rights and rights of visitation. The court, on grounds of humanity, has, however, allowed visitation of the separated parent to the place where the child is supposed to be met as would be specified in the decree, following them makes the parent bound by the obligation to meet the child[10]. This is the underlying principle of the cases that are most important to the Convention like for example- C. v. C[11]
Some Countries, that may or may not be a part of the Convention or a member-state to The Hague, have the right to follow their own laws with regard to the custodial rights of the parent [12]or party and this can in no way be treated as a violation of the right of the laws that have been so made in the Convention. This was made in the case of Virgah v. Foldes[13].
- Making the showing to establish custody rights
It is also clearly stipulated in the Convention that the entire process of court hearing for these issues has been kept very flexible to allow equal opportunity and rights of both the parties thus forming the entire basis on which the settlement can be made[14].
- How does the Convention work when the habitual residence is not defined?
There is no clear demarcation of what constitutes a habitual residence for the child. The main focus here is so maintained under the cover of habitual residence falling under the domain of custodial and abduction residence[15].
This however, is very critical to understand as to what can constitute the habitual residence of the child and has been partially made possible by the intervention of the State Authorities to determine as to what can constitute a habitual residence. A significantly well impacted factor in these situations can be the custodial difference based on the time that the child spends with both the parents in this regard.[16] It is critical to note that the Convention does not eat up on the remaining personal space of the parent even after the marriage has been dissolved and the child is separated, sometimes, which is unfair[17]. That is so because, the Courts mostly believe in the “surface traits” of the parent. In case, the parent is socially and economically well-off,the decree is passed in favor of that parent for the upkeep of the child[18]. The other parent, is given visiting rights liberally. This is essential to ensure that the Convention serves both long-term and short-term goals of the child’s future. [19]
- Validity of the defenses to be used under the umbrella of the Convention
The Convention has also allowed that the defenses used by the parent when the custodial parent files, a Hague petition, it is ordered by the Convention that the Court has the discretion to not let the child be returned back to the custodial parent and may alter the decree as passed earlier accordingly[20].
It was essential to allow the child to have a legal personality or the assurance of an existing legal entity whose interests need to be protected so as to avoid the infringement of legal and constitutional rights[21]. The Convention has been impliedly consonant with the view that children are the most vulnerable in the “legal society” and their interest are primordial to the successful management of abduction and the prevention of the grave aftermath of abduction.[22]
- Conclusion: Cultural Issues of an Unfair Abduction Trial
The Convention as it is to be rightly noted is heavily reliant on the cultural ties of the member States for the significant amount of contributions that can be made. Every culture of a particular country’s party has a lot of sway in the matters related to the rights of the custodial parent and child[23]. There are different practices that are followed by the family that files a Hague petition in the interest of the return of the child. In most of these cases, it is to be observed that the parties are weighed against each other on the basis of the cultural superiority and minority which has a greater convincing power in front of a Judge who is trying to arrive at a satisfactory resolution of the child’s legal custody.[24]
The empirical evidence and the case law, foreign and domestic, indicate that the Convention has been quite effective in deterring and remedying wrongful international removals and retentions in Contracting States[25]. The sway, in most cases, on deciding between a culturally superior party and a culturally inferior one, will be persuaded and judged in a way that gives more of emphasis on the party that has a greater degree of superiority[26]. Parties to the Convention have generally resisted the temptation to allow nationalistic and subjective notions of family structure to undermine the Convention ‘s objectives. However, as more culturally diverse countries join the Convention, normative value of family and parenting and best interests intrude into interpretations of Convention terms. [27]
The transforming and complicating nature of family life such as the recognition of homosexual and lesbian couples to create family relationships, may create deepening schism with other treaty countries[28]. Officially of course, Article 1b of the Convention [29]mandates the Contracting States defer to the custody laws of the State of habitual residence to determine whether custody rights have been infringed. However, one can easily imagine a Contracting State invoking an Article 13b exception to avoid return if perceived that the custody will eventually be awarded to a homosexual parent, despite the legality and acceptance in the State of habitual residence[30].
In addition, attempts to serve the best interests of children by conducting extensive hearings on the “psychological harm” or” intolerable situation” defense lengthen the proceedings and undercut the expeditious procedure envisioned by the Convention[31]. Fearing repercussions of such an approach, the New Jersey appellate court in Tahan v. Duquette[32]attempted to limit the scope of the hearings on such defenses, cautioning that “merits” issues are appropriate for consideration in the plenary custody [33]proceeding in the place of habitual residence[34].
[1] FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 315–916 (1984).
[2] See Bethany R. Berger, Reconciling Equal Protection and Federal Indian Law, 98 CALIF . L. REV. 1165, 1187 (2010) [hereinafter Berger, Reconciling Equal Protection]; Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA L. REV. 591, 593 (2009) [hereinafter Berger, Red]; Carole Goldberg, Descent into Race, 49 UCLA L. REV. 1373, 1390–93 (2002); Sarah Krakoff, Constitutional Concern, Membership, and Race, 9 FLA. INT’L U. L. REV. 295, 296 (2014) [hereinafter Krakoff, Constitutional Concern]; Sarah Krakoff, Inextricably Political: Race, Membership, and Tribal Sovereignty, 87 WASH. L. REV. 1041, 1043 (2012) [hereinafter Krakoff, Inextricably Political]; Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 STAN. L. REV. 491, 543–47 (2017) [hereinafter Krakoff, They Were Here First]; see also Rice v. Cayetano, 528 U.S. 495, 514 (2000) (rejecting, as an improper proxy for race, the government’s use of ancestry and applying strict scrutiny).
[3] See infra section II.D, pp. 1829–39.
[4] Krakoff, They Were Here First, supra note 35, at 501–25; see also Morton v. Mancari, 417 U.S. 535, 552 (1974) (noting that a holding of invidious discrimination under the Equal Protection Clause for the exceptional treatment of Indians would “effectively erase[]” the “entire Title of the United States Code (25 U.S.C.)” structuring the recognition of tribal sovereignty and the trust relationship).
[5] Gerken, The Loyal Opposition, supra note 11, at 1963.
[6] See, e.g., Daryl J. Levinson, Rights and Votes, 121 YALE L.J. 1286, 1291 (2012) (defining “votes” or structural forms of representation for minorities broadly to include “not just ballots but also any form of representation or direct participation in processes of collective decisionmaking”).
[7] See, e.g., Gerken, The Loyal Opposition, supra note 11, at 1968. History has reinforced the nationalists’ blind spots or, more accurately, created them in the first place. For many, the story of racial progress is the story of Brown. For the more discerning, the story of racial progress is the story of social movements and the Civil Rights Acts. In either case, the means for achieving integration and its appropriate measure are clear. Nationally enforced rights are what mattered for racial progress. And the touchstone for measuring success is diversity. Jim Crow’s despicable legacy runs so deep that it is inscribed in our vocabulary. We classify institutions as diverse or segregated. “Diverse” institutions mirror the polity. “Segregated” institutions are those where racial minorities dominate. We have no laudatory term for heterogeneous institutions where racial minorities are in the majority and Whites are in the minority; those get lumped together with “segregated” institutions. As a result, we have no means of distinguishing between the racially homogenous enclaves of Jim Crow and heterogeneous institutions where racial minorities wield majority power.
[8] Kirsten Matoy Carlson, Congress and Indians, 86 U. COLO. L. REV. 77, 81 (2015).
[9] [1989] 1 FLR403 (C.A.).
[11] [1992] 1 F.L.R. 163 (High Ct. Fam. Div.].
[12] See Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 592–93 (1832).
[13] [612 N.E.2d 241 (Mass. 1993).]
[14] See generally, e.g., SOPHIA Z. LEE, THE WORKPLACE CONSTITUTION: FROM THE NEW DEAL TO THE NEW RIGHT (2014); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); LAURA WEINRIB, THE TAMING OF FREE SPEECH: AMERICA’S CIVIL LIBERTIES COMPROMISE (2016); Sotirios A. Barber & James E. Fleming, The Canon and the Constitution Outside the Courts, 17 CONST. COMMENT. 267 (2000).
[15] JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 135– 79 (1980) (crafting a careful analysis of how to best “facilitat[e] the representation of minorities,” but viewing “minorities” entirely through the black/white binary paradigm).
[16] See FREDERICK DOUGLASS, The Meaning of July Fourth for the Negro (July 5, 1852), in FREDERICK DOUGLASS: SELECTED SPEECHES AND WRITINGS 188, 204 (Philip S. Foner ed., 1999).
[17] U.S. CONST. art. I, § 8; id. art. I, § 2.
[18] Id. amend. XIV.
[19] See Jill E. Martin, The Miner’s Canary: Felix S. Cohen’s Philosophy of Indian Rights, 23 AM. INDIAN L. REV. 165, 165 (1998).
[20] Felix S. Cohen, The Erosion of Indian Rights, 1950 – 1953 : A Case Study in Bureaucracy, 62 YALE L.J. 348, 390 (1953).
[21] See, e.g., AMAR, supra note 6; UROFSKY & FINKELMAN, supra note 6, at 377–537.
[22] Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).
[23] See Frickey, supra note 16, at 384–85 (describing the Marshall Trilogy as a compromise and an effort to mitigate between the realities of colonialism and the values of a constitutional democracy).
[24] See ANDERSON ET AL., supra note 28, at 80, 91–105, 124–26.
[25] See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1, 25 (2002).
[26] Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status Enforcing State Action, 49 STAN. L. REV. 1111, 1119 (1997).
[27] Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 5101–5129 (2012)).
[28] See Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 HARV. L. REV. 433, 440 (2005); Angela R. Riley, Native Nations and the Constitution: An Inquiry into “Extra-Constitutionality,” 130 HARV. L. REV. F. 173, 199 (2017).
[29] Levesque v. Levesque [816 F. Supp. 662 (D. Kan. 1993)
[Korowin v. Korowin, Dist. Ct. Horgen (Feb. 13, 1992)
Poonah v. Poonah, [ 829 F. Supp. 363 (D. Utah 1993).
Sheikh v. Cahill [145 Misc. 2d 171, 546 N.Y.S.2d 517 (N.Y. Sup. Ct. 1989)
D’Assignes v. Escalante [No. BD 051876 (Cal. Super. Ct. Dec. 9, 1991)
[30] Heather K. Gerken, Abandoning Bad Ideas and Disregarding Good Ones for the Right Reasons: Reflections on a Festschrift, 48 TULSA L. REV. 535, 536 (2013).
[31] Levinson, supra note 39, at 1288.
[32] [613 A.2d 486 (N.J. Super. Ct. App. Div. 1992).
[33] See NADIA URBINATI, REPRESENTATIVE DEMOCRACY: PRINCIPLES AND GENEALOGY 2 (2006).
[34] See Maggie McKinley, Petitioning and the Making of the Administrative State, 127 YALE L.J. 1538 (2018).
