INTERNATIONAL CHILD ABDUCTION: THE USES AND ABUSES OF THE
HAGUE CONVENTION A PERSONAL COMMENTARY PAPER FOR A HEARING
BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS
My paper is drawn from my personal tragedy and my knowledge
of the situation in Britain and in Germany. In 1984, I married
a German doctor, Hans-Peter Volkmann, in London and our
first son, Alexander, was born a year later. Volkmann then
decided that we should move to Germany for two years. I
abandoned my City career to follow my husband, and our second
son, Constantin, was born in 1987. But our marriage broke
up and in 1992 we legally separated: the children would
live with their mother in London and visit their father
during their school holidays. At first, all worked well.
The children adapted quickly to their London life. They
continued their schooling at the French Lycee and spent
holidays with their father in Germany. I struggled to rebuild
my career in the City of London so that I could support
my children. By 1994 I had managed to obtain a senior position
in a Bank and to buy a comfortable apartment for the three
of us. On 6 July 1994, the children left for their summer
holidays. Without warning, four days before they were due
to return to London, their father announced that he was
not sending them back to England. He then disappeared with
the boys. I had no choice but to apply to the English courts.
The High Court of England & Wales ruled that the "retention
of the children is illegal" and ordered their "immediate
return" to Britain under the terms of the Hague Convention.
Initially, a local German court upheld the English decision.
But Volkmann requested half an hour to say good-bye to the
boys. My lawyers naively agreed. Taking advantage of this,
and in defiance of the court order, Volkmann bundled the
boys into a car and vanished. The local police were unwilling
to help and by the time Court bailiffs were located, it
was too late. The following day, Volkmann lodged an "ex-parte"
(i.e. the judges did not inform my side) appeal in the higher
court of Lower Saxony, in the nearby town of Celle. Astonishingly,
the judges made a provisional ruling in his favour. The
children should remain in Germany until the appeal was heard.
When this took place, in October 1994, the Celle court reversed
the earlier English and German decisions on the grounds
that it was the children's wish to remain in Germany, and
that they had been suffering in a "foreign environment...especially
since German is not spoken at home or at school"...
The judges ruled that the children had attained an age at
which it was appropriate to take their view into account,
...since "a 7 year old child faced with the decision
to play judo or football, generally knows which decision
to make"... At the time of the hearing, I had not seen
or spoken to my children in over four months and they had
been under the sole influence and control of their father.
The Celle court decision also meant that all further legal
proceedings on custody and access took place -and are still
taking place, four years later- on the abductor's home territory.
The second consequence was that despite numerous applications
to the German court since 1994, I have never been able to
see my children alone. In November 1995, several applications
were rejected on the basis that I might re-abduct the boys
and that they no longer wanted to see me. In December 1995
a further hearing was held in Verden: access was again denied
on the grounds that I could re-abduct the children if we
were to spend Christmas together. In January 1996, following
a desperate attempt to see my boys in Germany, I was falsely
accused by my ex-husband of trying to abduct the children.
Despite a police report confirming this was untrue, immediately
thereafter and in my absence the court transferred the residence
of the children to Germany. Despite every guarantee on my
part, including the support of the British Consul General
in Hamburg, the fear of abduction was consistently used,
over the next few years, to deny me and my parents normal
access rights. In September 1997, Volkmann divorced me.
In exchange for giving him custody, it was agreed in court
that I should have access to the children on "neutral
territory". But when the moment finally came, six long
months later, for me to meet my sons in Hamburg, Volkmann
backed out at the last moment, stating that it was the wishes
of the children not to see me. The judge refused to enforce
the access agreement. It was only then that I discovered
that while the custody arrangement was enforceable, access
was not. (In the UK it is not possible to get a divorce
or a custody order without - enforceable access arrangements).
This took place in February of this year. Since then a further
application to see my children has been denied on the grounds
of "lack of urgency ". Now, I am awaiting another
hearing in Germany to which I have been summoned on 25 November.
In the last four and a half years, not only have I never
been alone with my children, but I still have no enforceable
access rights. In this period, I have been able to spend
only 11 hours in the company of my children. (2 visits in
December 1994; 1 in October 1995 and 5 more by May 1996
and 1 in February 1998). All were held under the most harrowing
conditions: locked in my ex-husband's secluded house and
under the supervision of a third party. All were broken
off after less than two hours. So the months pass, the years
pass, and my children are growing up without a mother. Before
my ex-husband abducted our children, they were allowed to
see and love both their parents. Now, they are not. If anything
is trans-national, it is the interests of the children.
Sadly, children's issues remain an area where national interest
is too often allowed to assert itself. Cooperation between
some Hague Convention countries is practically non-existent.
Judges often do not know the treaty well enough to enforce
it and nationalism takes precedence over the Hague Convention
rules. Has anyone proved that I am an unfit mother? No.
Has anyone proved that I do not love my children? No. But,
I am nonetheless denied the rights that even women in prison
are allowed. My parents have been denied all access as well.
My 86-year old father may never live to see to see Alexander
and Constantin again. My children will be scarred for life
and they may never recover from this experience. They have
become confused and angry with me, because they have been
told that I have abandoned them. On two occasions, when
I saw my sons and told them how happy I was to see them,
Alexander replied: "you lie. Daddy told us that you
could come and see us whenever you wanted - but you never
did". My children, as thousands of others, do not deserve
to have their lives destroyed in this way.
* * *
Most people associate child abduction with countries where
laws and customs are very different from ours. But, child
abduction within western societies is much more common than
supposed and there has been an explosion in the number of
incidents since the mid-1970s. There is an obvious link
between this phenomenon and the decline in marriage as a
stabilizing factor in our societies. The sharp rise in divorce
rates and children born outside marriage provide fertile
ground for disputes about custody and access. At the same
time, the problem of child abduction has over the last two
decades acquired a new and sometimes insoluble dimension.
Statistics point to an increase in marriage between people
of different nationality. This is hardly surprising. With
the explosion of international travel and tourism, the social
consequences of a global economy, and the increasing irrelevance
of national frontiers, especially in Europe, traditional
impediments to trans-national marriages have fallen away.
But those unions are no less prone to divorce and to quarrels
about children. Whenever marriages break down, a decision
has to be taken on where and with whom the children will
live. This can be a bitter and contentious business. But
when parents of different nationalities are involved, disputes
over custody and access can be further exacerbated by differences
in culture and in the legal systems of the two countries
involved. Some of these situations result in cross-frontier
abductions by one of the parents. When this happens - in
contrast to abduction within a single national jurisdiction
- experience shows how difficult it is to secure the safe
return of children and to protect them from the psychological
damage inflicted by abduction. Judicial cooperation between
states can be a highly contentious area as the recent negotiations
on an International Criminal Court have shown. One of the
reasons is that judicial systems lie at the heart of national
sovereignty. This often inhibits cross-border cooperation,
which requires the competence of national courts to be limited
by international obligations. The issue of child abduction
is a prime example of the limitations of international cooperation
in the judicial area. There are no international conventions
regulating custody matters. Every country has its own judicial
system. Custody orders made in one country are not necessarily
recognized in another. When non-custodial parents abduct
their children from the state in which custody has been
given (usually heading to their home country), the chances
of recovering them through judicial process can be slim.
Every year, more and more children find themselves separated
in the most harrowing circumstances from one of their parents.
The effect on children can be devastating. But the victim
parents themselves are also plunged into a bewildering world
where helplessness, despair and disorientation compete.
The emotional trauma is compounded by the daunting practical
obstacles to retrieving the children, or even to gaining
access to them. Simply finding out where to get help can
be very difficult. Parents often face unfamiliar legal,
cultural and linguistic barriers. Their emotional and financial
resources can be stretched to the limit. In the meantime,
the abducted child is often led to believe that the victim
parent has abandoned it, so leading the child, in its anger
and hurt, to assert that it does not want contact with the
victim parent. This vicious circle complicates still further
a resolution, and will continue to do so until courts recognize
that there is such a thing as Parental Alienation Syndrome,
PAS. As the years pass, the chances of recovering children
before their adulthood become progressively more remote.
Many victim parents feel that it would be easier to come
to terms with the shock of bereavement than with a situation
marked by prolonged uncertainty and anxiety. Some parents
may believe that their actions have an objective justification
(e.g. to rescue their children from domestic violence).
But a common thread in all too many cases is the sustained,
vengeful effort of the abductor to deprive the other parent
of contact with the child to the maximum degree possible.
The aim is to flee one judicial system, in favor of another
- in order to permanently reverse previous custody decisions
and destroy the other parent's relationship with the child.
The International Hague Convention on the Civil Aspects
of International Child Abduction of 1980 was designed to
ensure "the protection of children from the harmful
effects of their wrongful removal or retention". Should
one parent break a custody agreement either by illegally
retaining (on an access visit) or abducting a child, the
Hague Convention requires its immediate return to the country
where the original custody agreement was made. The purpose
of the Hague Convention was to provide a simple and straightforward
procedure. In this, it has largely failed. Different national
approaches to implementing the Hague Convention, the slowness
of procedures, the lack of legal aid in some countries,
and the excessive recourse to the loop-hole clause, has
meant that most cases of international child abduction remain
unresolved. Some children are never located. Others are
simply not returned to their country of origin. The exact
figures for trans-national child abduction are not known.
Many parents are reluctant to go to the central authorities.
Others are not even aware of the existence of the Hague
Convention. The official figures could well understate the
problem. Even so they are alarmingly high. In the United
States alone, the National Centre for Missing and Exploited
Children reports over 1,000 American cases (on average two
children per case) of cross-border abduction every year
and the number is growing sharply. In England, Reunite,
the National Council for Abducted Children, has recorded
a 50% increase since 1995 in the number of children abducted
abroad by an estranged parent. In France, a similar upsurge
has been recorded. Despite the rapid increase in abduction
cases, there is too little awareness of the phenomenon in
the governments and legislatures of Convention signatories.
Nor is there much awareness among the populations at large.
As a result, very little is being done to tackle the issue
and to make The Hague Convention work as originally intended.
* * *
The Hague Convention on the Civil Aspects of International
Child Abduction is an international treaty currently in
force between 49 countries. The objectives of the Convention
are "to secure the prompt return of the children wrongfully
removed to, or retained in, any Contracting State; and to
ensure that rights of custody and access under the law of
the Contracting State are effectively respected in the other
Contracting States" (Article 1). The Convention is
not concerned with the "best interests of the child",
that is to say, with the merits of a custody case. Criticisms
or complaints about the custodial parent or the terms of
a custody award, are matters to be dealt with by the jurisdiction
of the child's habitual residence. The paramount objective
of the Hague Convention is to return the child to the country
of habitual residence and to confirm that country's jurisdiction.
The Hague Convention provides for a civil proceeding to
be brought by the country from which the child was removed
or retained. If proceedings are filed within one year, the
judge of the country of retention is mandated to order the
return of the child to the country of habitual residence.
(Return is discretionary if more than one year has elapsed
and the child is settled in the new environment). The abducting
parent can raise objections to the return. But the intent
of the Convention is not to allow these objections except
in the most narrowly defined circumstances. The exception
to the requirement for the immediate return of the child
to the country of habitual residence is to be found in Article
13 of the Convention. "The judicial or administrative
authority of the requested State is not bound to order the
return of the child if" (Article 13b) "there is
a grave risk that the child's return would expose him/her
to physical or psychological harm or otherwise place the
child in an intolerable situation. The judicial or administrative
authority may also refuse to order the return of the child
if it finds that the child objects to being returned and
has obtained an age and degree of maturity at which it is
appropriate to take account of its views". A main intention
of this article was to draw a clear distinction between
a child's objections, as defined in the article, and a child's
wishes as commonly expressed in a custody case. This is
logical, given that the Convention is not intended as an
instrument to resolve custody disputes per se. It follows,
therefore, that the notion of "objections" under
Article 13b is far stronger and more restric- tive than
that of "wishes" in a custody case. A failure
by courts to grasp this distinction, and to see it as a
key defense against the manipulation of a child by the abductor-parent,
is a root cause of the difficulties described below in the
implementation of the convention. To sum up: By allowing
an exception, the Hague Convention does not set an absolute
rule. Children are not automatically returned. Article 13,
in constituting this exception, can offer abductors a way
of legitimizing their actions. Whether or not article 13
serves this purpose depends on how the judge interprets
its meaning.
* * *
The discretion given to judges has in practice resulted
in a wide variation between signatory states in the outcome
of proceedings. The American Bar Association reports that
judicial returns vary between 5% and 95% from country to
country. Article 13b, originally intended as an exception,
has in some countries become virtually the rule. This is
jeopardizing the Convention's effectiveness and perverting
its original intent. Evidence is accumulating that a major
cause for the discrepancy in rates of return orders is the
level of court allowed to hear Convention cases. When cases
are heard centrally by High Court judges, return orders
are usually made. But, the system tends to fail, when the
courts hearing Convention cases are local family courts
without Convention experience. This is particularly significant
when Article 13b is raised as an objection. In England and
Wales, Convention cases are exclusively heard centrally
by a small number (seventeen at present) of specialist High
Court judges. The High courts of England and Wales usually
hear cases expeditiously based on paper evidence and without
the child's view being heard. Judges usually make a decision
quickly to return the children, relying on the foreign court
to make a fair decision at any subsequent custody hearing.
The Consultation paper on Child Abduction published in the
February l997 issue of the British Family Law journal reported
that in England and Wales, the "consistent approach
has been to draw a clear distinction between children's
objections under article 13b and children's wishes in ordinary
domestic custody cases". The English High Court has
taken a policy decision to approach Art. 13b with caution
(for example against the risk of indoctrination by an abducting
parent) and, even if a child were found to object to a return,
to refuse a return only in an exceptional case. Conversely,
in countries where Convention cases are first heard in local
courts without Convention expertise, the results can be
very different. For instance, in Germany, all Amtsgerichte
(small family courts that can be found in towns which have
as few as 20,000 inhabitants) have jurisdiction to hear
Convention cases. Cases are heard in the locality where
the abductor has taken the children (usually his hometown)
and it is impossible to change jurisdictions. The risk here
is of inexperienced judges, who may misinterpret the meaning
of the Hague Convention. The 1996 Lowe report found that
in Germany, no single Amtsgericht court had heard more than
one case and that every time that the child's objections
were raised as a "defense" for abduction or retention,
a return order was refused A feature of many such cases
is that they are allowed to become a discussion on the merits
of custody arrangements. Frequently, an abducting parent
will, within the framework of Article 13b, level allegations
against the other parent and request that oral evidence
be heard. Judges, who are inexperienced, treat these Article
13b objections as "a merit of custody" argument.
This is exactly what the Convention was supposed to avoid:
such considerations are meant to be reserved to the court
of the child's habitual residence, which is best placed
to decide on questions of custody and access. But local
family courts are too often unable or unwilling to uphold
the difference between proceedings under the Hague Convention
and arguments over custody arrangements. Underlying this
is a distrust of foreign courts. There is the added risk
of a vicious circle, if family court judges are seen to
favor local residents. Abductors will be readier to take
the law into their own hands, if they believe that their
judges will ex-post facto legitimize what they have done.
The merit of the Convention is supposed to lie in the speed
of its proceedings. But, some countries are markedly slower
in dealing with Hague applications than others. This is
particularly the case where, as described above, court proceedings
become in reality an argument over custody. (The problem
of delay is compounded when cases are first heard in lower
courts and appeals can then be lodged in higher courts).
In some countries, the involvement of the local Youth Authority
or Social Services, plays a major role in proceedings. Local
judges tend to rely on their evidence, and hold up matters
by asking to see welfare reports and the children. While
in principle this could give a more complete picture of
the children's situation, it is nonetheless a major factor
for delay. In the meantime the child is more and more under
the influence of the abducting parent and further alienated
from the absent parent. There is another problem. Youth
Authority reports are usually based on information available
only in the country of retention and there is little direct
investigation into the environment from which the child
has been taken. The result, therefore, can be an in-built
bias in favor of the abductor. Finally, the passage of time
will eventually generate a new argument, which favors abductors,
namely that the children are now settled in their new environment
and should not be moved yet again. 3. Perversion of the
Convention's intent In a number of countries, therefore,
interpretations of the Hague Convention extend its meaning
to encompass in practice an unwarranted jurisdiction in
custody matters. Certain consequences flow from this, all
of them prejudicial to the victim. When a child is not returned,
the abducting parent has the additional advantage of having
subsequent proceedings dealt with in the country of retention
rather than the country of the child's habitual residence.
Case studies show that these court decisions, dealing with
custody and access rights, tend to favor the abducting parent.
This, combined with the fact that in some countries (for
example in Germany,) judges are reluctant to enforce access
orders, results in a situation where a parent is often deprived
of all contact with the child, or at best, has contact in
only the most harrowing circumstances (e.g. a government
office with a third party present). On this interpretation
of Article 13, the Hague Convention becomes in effect the
instrument of alienation between child and victimparent
- the very opposite of what was intended Professor Elisa
Perez-Vera provided the primary source of interpretation
of the Convention in her Report of 1980: "The Convention
as a whole rests upon the unanimous rejection of the phenomenon
of illegal child removals and upon the conviction that the
best way to combat them at an international level is to
refuse to grant them legal recognition... the systematic
invocation of the said exceptions, substituting the forum
chosen by the abductor for that of the child's residence,
would lead to a collapse of the whole structure of the Convention
by depriving it of the spirit of mutual confidence which
is its inspiration". 4. Child trauma and Parental Alienation
Syndrome Children who are abducted will have already suffered
from their parents' separation. But, in addition, they will
experience the trauma of being suddenly cut off from their
familiar environment - from a parent, grandparents, school
and friends. This experience is already bad enough: many
children do not understand what is happening or why. But
things are often made even worse, when the abducting parent
is hiding from the police or taking precautions against
re-abduction; when the child realizes that there is a state
of war between its parents. The child has already been traumatized
by the loss of one parent; its greatest fear becomes that
it will lose the other parent. This fear itself then becomes
an obstacle to resolving the situation, since it is central
to what is known as Parental Alienation Syndrome (PAS).
Studies of PAS have established the severity of psychological
damage done to abducted children, suddenly separated from
a parent. The studies have also shown how susceptible the
child is to being systematically alienated by the abductor-parent
from the victim-parent. This susceptibility bears comparison
to the "Stockholm Syndrome", when hostages start
to identify with their captors. In the case of an abducted
child the identification will be the stronger, because of
the age of the "hostage" and the child's relationship
with the "captor". For fear of losing the abducting
parent as well, the child will not only be eager to please,
but ready to believe allegations that it has been abandoned
by the victim parent. This is fertile ground for systematic
indoctrination by the abducting parent and/or a professional
psychologist. Since under some judicial systems, children
- sometimes as young as three - may be required to appear
in court, it becomes of paramount importance to abductor-parents
that their children say "the right thing" to judges.
This puts an even higher premium on placing psychological
pressure on abducted children. The irony - and tragedy -
is that the Hague Convention, in judicial systems like these,
delivers children into precisely the danger from which it
is supposed to protect them. Again Article 13 b is the crux.
It can only be invoked if returning the child would expose
it to grave risk of "physical or psychological harm"
or place it in an "intolerable situation". What
greater psychological harm, what more intolerable situation
could there be for a child, than to be exposed to systematic
indoctrination by one parent against the other; and, worse,
to carry the main burden of responsibility in adult court
proceedings for deciding between mother and father? When
placed in this context "the will of the children"
becomes nothing less than a vehicle for legitimizing the
actions of the abductor-parent. 5. Enforcement Another problem
lies in the alarming number of return orders, which have
not been enforced. In several Convention countries, abduction
is not considered a criminal act. Returns orders are not
enforceable. In other countries, the enforcement process
can take several months and does not always end in a return
order being made. (The case of Tom Sylvester -US/Austria
- is but one such example). 6. Legal Aid The lack of legal
aid provisions in some countries is another major problem.
Victim parents are often unable to bare the costs associated
with these expensive procedures. In England & Wales,
for instance, the legal aid provisions are extremely generous.
But there should be no reason why each Contracting State
should not underwrite the application under the Convention
itself. It would also be helpful to judges if they knew
that legal aid will be available in the Contract State to
a parent whose child the judge is returning under the Convention.
Eighteen years of experience with The Hague Convention leads
inevitably to the conclusion that it is a seriously flawed
instrument, which at worst prejudices the welfare of abducted
and illegally retained children. The heart of the problem
lies in the failure of national legal systems to implement
the Convention in a uniform fashion, consistent with its
spirit. As a result the Convention appears to be no deterrent
to child abduction. It is arguable that, in so far as Article
13 can be exploited to justify abduction or retention, it
has made the situation worse. It is also striking that,
according to research by Dr. Linda Girdner, a parent is
more likely to secure a return order through a non-Convention
proceeding than through a Hague Convention proceeding (Dr.
Girdner quotes an 80% success rate with the former compared
with 33% under the latter). This is not an argument for
dismantling the Hague Convention. It is an argument for
improving it. The international community needs an international
treaty based on the rejection of illegal abduc- tions or
retentions across frontiers and the need to return children
to their usual place of residence. The fact that, as in
England & Wales, the Convention can be made to work
as intended shows its potential. The task is to come up
with remedies to deal with those situations where the Convention
does not work. This task will not be easily or quickly accomplished.
That would require the establishment of some kind of supra-national
legal body, to which signatory states would defer. That
is not going to happen any time soon. The raw material with
which we have to work is 52 signatories, with different
judicial systems. By definition, as long as this situation
remains, the proper implementation of the Hague Convention
will depend in large part on a willingness to cooperate
in good faith. But there are a number of steps, which we
can begin to take straight-away and which should set in
motion an incremental process of improvement. A Hague Convention
Review Conference needs to be called as soon as possible
to debate and introduce improvements in the following areas:
The Convention should make trans-national abduction and
retention of children a criminal offense, notifiable to
Interpol, Europol and national police agencies. At the same
time, so as to coordinate action and information, there
should be "hot lines" between Central Authorities
and police; between national organizations, such as NCMEC
and Reunite, on the one hand and Central Authorities and
police agencies on the other; and between members of the
public and national organization. Governments should fund
information campaigns to make the public aware of these
arrangements. The staff and resources of the Permanent Bureau
in The Hague and of Central Authorities should be increased
to meet the need for more effective action to tackle international
child abduction. In particular the Central Authorities should
notify the Permanent Bureau of all abductions or illegal
retentions brought to their attention, as well as of the
outcome of Hague Convention proceedings on their territories.
The Bureau should keep a comprehensive database of these
cases. While an exception clause cannot be dispensed with
altogether, Article 13 should be re-drafted in a way, which
narrows its use to genuinely exceptional circumstances.
As currently drafted, it can too easily become the rule
and not the exception. In parallel, strict limitations should
be placed on the age and circumstances in which children
can be called to appear before the court. As a general rule,
since Convention hearings are not about custody, children
should not appear in courts at all. To require young children
to appear in court and to make a choice between parents
is a form of child abuse, inflicting extreme cruelty. The
confusion and stress involved are for most children beyond
description, and empty the notion of the "will of the
children" of any significance. There may be rare cases
when it is important to hear the child at first hand. But
no child below a certain age should have to endure this
ordeal. Article 13 should incorporate a clause dealing with
access provisions. Namely, if a court refuses a return,
it should automatically make the necessary provisions for
enforceable access rights, with a fair division of travel
costs. Article 21 should be entirely revised. Experience
has shown that it does not work. Provisions for legal aid
should be addressed and a common policy should be established
by all signatory countries. Many of these points were discussed
at the recent NCMEC conference on 15 and 16 September 1998.
The recommendations which will be put together shortly,
cover much of the above ground.