The Hague Convention on the Civil Aspects of International Child Abduction as Applied to Non-Signatory Nations: Getting to Square One

Article excerpt

I. Introduction

II. The Hague Convention in a Nutshell

A. Provisions

1. Wrongful Removal or Retention

2. Habitual Residence

3. Discretionary Exceptions

B. Limitations

1. Mechanics

2. Non-Signatories

III. Non-Convention Country Cases

A. Abductions to Non-Signatory Nations

B. Abductions from a Non-Signatory Nation

1. Australia

2. Great Britain

3. The United States

IV. Conclusion

I. INTRODUCTION

Children can't be divided with community property. They're not the good china, the record collection, the cute little etchings on the wall that someone bought on holiday in Scotland.(1)

[C]hild abduction is not an act of love. It has never been and never will be. It's the ultimate revenge on the other partner--and the pain never leaves.(2)

The problem of international child abduction is not a new one. From 1978-1996, more than 5,500 international child abductions by parents have been reported to the U.S. Department of State.(3) Nor is the problem uniquely American. One activist has noted that child abduction is an "international phenomena and is not confined to countries from the west or east, north or south, but wherever there are marital disputes."(4) Most kidnappings occur in multi-cultural nations with high immigration.(5) For example, between the years 1987 and 1995, 317 children were abducted from Australia and 242 children abducted from other countries were brought into Australia.(6) In 1995 alone, 196 children were abducted from Britain to Europe.(7)

The custodial parent of an abducted child faces many challenges. Provided the child is located, the parent must bring a custody proceeding in a foreign and often hostile country.(8) This is an expensive, time consuming, and emotional process.(9) Furthermore, the child suffers greatly from the psychological trauma of abduction.(10)

The international community responded to these challenges by drafting the Hague Convention on the Civil Aspects of International Child Abduction (Convention).(11) Based on the premise that abduction is detrimental to the welfare of children, the Convention's provisions are designed to return the parties to the factual status quo preceding the abduction.(12) In the sixteen years of its existence, the Convention has been largely successful, both as a vehicle for returning an abducted child where appropriate(13) and as a deterrent to future abductions.(14)

One commentator suggested that the Convention would "reeducate" foreign judiciaries and child welfare authorities.(15) "Reeducation" refers to the abandonment of the practice of using the child's interests to justify keeping the wrongfully removed child in the country to which he or she was abducted.(16) Courts would "lose their tendency to believe that foreign countries are detrimental to any child's welfare."(17) This concept highlights an important Convention principle and will prove useful analyzing abduction cases that fall outside the Convention.

Part I of this Comment will provide a general overview of the Convention's provisions and note its limitations."(18) It will also discuss current movements to improve the Convention. Part II will then examine how certain signatory countries approach and decide cases involving a non-Convention country.(19) This Comment will primarily focus on the approaches of the United States, Australia, and Great Britain, but will also consider some alternate remedies from other countries. This Comment will also highlight the difficulties which a parent may encounter in obtaining an appropriate forum to hear a custody dispute without the Convention's guidance. Part III will briefly conclude with a call for more action by signatory nations to alleviate the complications that arise when the Convention does not apply. …