Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases

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III. The Contract Action Model (The Contract Model)

A. Presenting the Model

Where there is an agreement between the parties concerning the custody of the child and visitation arrangements, there may well be a breach of that agreement, which gives rise to an action for breach of contract and to the award of remedies, including compensation for financial and non-financial damages and the cancellation of the contract. The issues involved in awarding compensation to the left-behind parent for breach of contract are largely the same as those involved in awarding compensation in tort.

An example for this model is the case of Dr. Z.M. v. R.M.P., which was discussed above in relation to the tort model. (142) In this case, the parties agreed in their divorce settlement, which was approved by the court, that the mother would have the sole custody of the child and the father would have visitation rights, but neither of them was allowed to take the child outside the jurisdiction without the written consent of the other party or of the court. The mother deceitfully took the child to Australia with no intention to return.

Thus, the contract is in fact the divorce settlement, which settles matters such as custody and visitation. Often such a contract is approved by the court, which means that it also has the force of a judicial decision. This will also be the case in relation to a separation agreement or other custody agreement made in cases where the parents were not married from the outset. It seems that even an oral consent as to visitation and the conditions for leaving the country will be considered as a contract in these cases.

Abduction can clearly be a breach of such contracts, even if the left-behind parent is not the custodian, where the contract clearly forbids a unilateral decision to take the child outside the jurisdiction and also where the removal prevents the realization of visitation rights. (143)

B. Advantages

The main advantage of the contract action compared to the tort action may be that the left-behind parent need not prove breach of duty of care or statutory duty, but only the existence of a contract and the breach of it.

In addition to the right to claim compensation, the left-behind parent can ask the court to change the terms of the contract in light of the breach and the change in circumstances. This is true whether or not the contract was approved by a court.

A contract action clearly promotes the major objective of contract law, which is to ensure that agreements are respected and, where they have been violated, to put the parties in the position that they would have been in if the contract had been performed, so far as possible. In the current context, this means compensating the left-behind parent for all the losses and expenses he has incurred as a result of the breach of the contract.

Furthermore, a contract action is compatible with most of the goals of tort law and some of the goals of the AC in the same way as a tort action, as discussed above. (144)

C. Disadvantages

A contract action, like a tort action, is separate and independent from the proceedings for return of the child under the AC with the attendant disadvantages, outlined above. (145)

Here too, the limited relevance of the abductor's lack of moral blameworthiness discussed above in relation to the tort model is equally relevant. In fact, there may be less scope for taking into account the left-behind parent's contributory fault because it is not clear that such a defense exists in contract law. (146) In addition, the left-behind parent can claim that if the abductor had complaints against him, he could have gone to court to seek appropriate remedies, such as changing the contract or even voiding it entirely.

The rest of the procedural problems, such as res judicata, the splitting of damages, and the uncertainty in relation to heads of damage and quantification of compensation exist in this model too. …

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