Academic journal article Texas International Law Journal

The New Face of International Child Abduction: Domestic-Violence Victims and Their Treatment under the Hague Convention on the Civil Aspects of International Child Abduction

Academic journal article Texas International Law Journal

The New Face of International Child Abduction: Domestic-Violence Victims and Their Treatment under the Hague Convention on the Civil Aspects of International Child Abduction

Article excerpt

Summary

Introduction 622

I. Operation of the Hague Convention 623

A. Structure of the Proceedings 623

B. The Changing Profile of Abductors 625

II. Justice for Domestic-Violence Victims Under the Hague Convention 626

A. Past Unjust Treatment of Victims 626

1. Original Purpose of the Convention 626

a. Quick-Return Mechanism 626

b. Predisposition to Use Return Remedy 628

2. Language and Operation of the Convention 630

a. Artificial Two-Prong Test 630

b. Literal Interpretation of the Article 13(b) Defense 632

c. Habitual Residence 633

B. Positive Trends for Victims 634

III. Solidifying and Advancing Progress 636

A. Limitations to Work Within 636

1. Mission Creep 636

2. Uniformity and Predictability ....637

3. Rights of the Left-Behind Parents .........638

B. Two Paths .......638

1. Working Within the Existing Framework ......638

2. Adding a New Mechanism ......641

Conclusion .......642

Introduction

Imagine a mother1 being abused physically and emotionally until she reaches a breaking point, a point at which her desperation is so great that she severs all ties to friends and family and takes her child across international borders to escape her abusive husband. She's alone with her child, with no support system or financial resources. Then, adding to her hardship, the left-behind father files a petition under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention) to ask a court to order the child's return. This Note will focus on how the Hague Convention treats fleeing domestic-violence victims, like the mother described above.

Part I of the Note will outline the elements of the Hague Convention and how it operates in practice. This part will highlight how the profile of the abductor targeted by the Convention is changing from the abusive parent to the victimized parent. It will note how this change creates tension between discouraging child abduction and protecting victims of domestic violence.

Part II will discuss how that tension manifests itself in the unjust treatment of domestic-violence victims under the Hague Convention. It will break down the different ways in which the Convention's purpose and language works against fleeing domestic-violence victims. However, it will also acknowledge an emerging trend towards more favorable treatment of such victims.

Part III identifies two ways in which the Hague Convention could make that positive trend permanent and then build on it to offer better protections for domestic-violence victims. Specifically, this part examines two different models that have been proposed: (1) Switzerland's law defining "intolerable situation" and (2) the use of elective mediation.

This Note will demonstrate how the Hague Convention, in large part, treats domestic-violence victims unjustly. While there has been a positive trend emerging, it remains uncertain that the progress will become institutionalized and built upon. The two solutions that will be examined offer hope for progress in the future.

I. Operation of the Hague Convention

The Hague Convention is an international procedural mechanism available to the left-behind parent in cases where a child is abducted by the other parent from one signatory nation to another.2 This procedural mechanism determines if the child will be returned to the original country of residence for the ultimate resolution of the underlying custody issues between the two parents.2 In order to understand how this Convention applies to cases of domestic violence, one needs to understand the structure of the proceedings and the realities on the ground today regarding international child abduction.

A. Structure of the Proceedings

It is helpful to think of the structure of proceedings in terms of the actors and their respective roles. There are three actors: the Central Authority, the left-behind parent (petitioner), and the abducting parent (respondent). …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.