International Child Abduction

The Inadequacies of the Law

Thalia Kruger

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847318565
• Edition: 1
• Topic: Diritto
• Subtopic: Conflitto di leggi

International child abduction occurs when one parent wrongfully (ie in breach of the parental responsibility of the other parent) takes a child to a country other than that of the child's habitual residence, or wrongfully keeps a child in such country. The author of this work was part of a research team that conducted a study, partially funded by the European Commission, to examine this problem in Belgium and Hungary, analysing cases from 2007 and 2008 and interviewing affected parents. This book is a revised version of the Belgian research report, which sets the problem of child abduction within its international context. It looks at the families in which abductions took place, how preparations were made for abduction, the quest for the return of the child (including legal proceedings) and the aftermath of the abductions. Throughout the book, the results of the quantitative and qualitative data are explained. What emerges is that when a child is abducted, the solutions offered by the law are often inadequate. Family conflict is a complex societal issue, and child abduction is a severe form of family conflict. Rather than responding to child abduction with strict and contentious legal proceedings, the book argues that solutions based on respect, psychological assistance, and a search for consensus should be favoured.

1

The Research Project and Book Structure

I. Introduction

For one abduction, fifteen people are affected . . . the time has come to start taking this problem seriously. It will grow exponentially in the years to come.¹

The abduction of children by one of their parents to another country is a problem with many faces. No two cases are the same. In some instances a mother returns with her children to ‘her’ country, without the consent, or sometimes even without the knowledge, of the father. In other cases a parent flees with his or her children from the country of residence, where he or she is not happy. Sometimes a parent takes the child to hurt the other parent. Some parents believe that their children will be better off in another country or without their other parent. Some people flee from debts.

Whatever the reasons for abducting a child, it causes great distress, anxiety, confusion, sadness and trauma. The left-behind parent suffers, as do other family members and relatives. The ultimate victim is, however, the child. He or she is ripped away from a familiar environment (including school or nursery school, friends and sports clubs), often without preparation and without explanation.

While it is accepted that persons can assume their individual freedom to live with their partners, separate from them, migrate and relocate to other countries, this should not violate the fundamental rights of the child to maintain contact with both parents.

Children should be protected from family conflict that escalates to the extent where it jeopardises their natural development.

For these reasons, the international abduction of children by one of their parents should be countered in all possible ways.

The purpose of this book is to communicate the results of research conducted in Belgium on international child abduction by parents in 2007 and 2008. Abductions to and from Belgium were investigated. While the research focused on Belgium, this phenomenon is international by its nature. In every abduction at least two countries are involved. Comparative material is introduced where available. I believe that the results are of interest to a broader public than just Belgium. Many of the results correspond to the findings of a similar research project done in Hungary² and to international research.³

II Methodology

A Methodology for the Quantitative Research

For purposes of the quantitative analysis, more than 700 files were examined. These were administrative files that were held in the archives of the Ministry of Justice (specifically the Central Authority for Mutual Legal Assistance in Civil Matters, whose competences include international child abduction), the Ministry of Foreign Affairs and Child Focus.

Files that were open in 2007 or 2008 were taken into account. The notion of an ‘open’ file is an administrative one and could very well differ depending on where the file is kept. Files are closed for different reasons. At Child Focus, for instance, if a parent no longer wishes or needs the intervention of Child Focus, the file will be closed. It may well be that this person’s file is still open at the Central Authority and that the situation has not yet been resolved.

The Central Authority would generally close a file at the end of the proceedings based on the relevant Convention. This includes the enforcement of the decision that a child should return. For instance, if a judgment in 2006 ordered the return of the child, but the child had not yet returned by 2007, the file would be considered open. Thus, such file would be part of the dataset on which this research was based. A file can also be closed on the basis of the final (including appeal where relevant) judgment that the child should not be returned.

Files at the Ministry of Foreign Affairs tend to stay open for a long time. As these files do not concern legal proceedings, but rather diplomatic negotiations, finding appropriate solutions often takes a long time. In many instances the child has not returned, but the Ministry continues to assist in the negotiation of visits of the left-behind parent to the child or of the child to the left-behind parent.

In considering whether the file should be included in the analysis, the ‘open’ classification given by the institution where the file was held was respected. This was the only way in which to ensure consistency in the selection of files.

The selection of the files took some effort. While Child Focus’s database allows selection of all files that were open during a particular year, the Ministries have different ways of classifying cases. The Central Authority and the Ministry of Foreign Affairs classify files on the basis of the year of opening. This means that the files to be included in the research had to be sought in various places.

Of the 700 files plus, 667 were finally retained for the analysis. Others were excluded, because they were abductions within Belgium (thus not across an international border), or because it emerged that the ‘child’ was older than 18, or because the file was closed before 2007. The number of files was significantly higher than what had been expected beforehand. However, care should be taken not to divide this figure by two for a total number of abductions per year. Some of the files had been open for a long time.

In the final dataset, the following files have been included per institution:

• 297 of Child Focus.
• 71 of the Ministry of Foreign Affairs.
• 443 of the Central Authority.

When seeing these figures, it becomes clear that there are many files dealt with by more than one institution. Most of the overlaps were with Child Focus. Parents can open a file at Child Focus and at the Central Authority, or at Child Focus and at the Ministry of Foreign Affairs. A protocol of cooperation exists between Child Focus and the Central Authority. According to this protocol, when a parent contacts Child Focus reporting the abduction of his or her child, Child Focus contacts the Central Authority in order to inform it. In cases where the Central Authority would be competent (because the child had been abducted to a state with which Belgium has legal ties in the sense of a Convention), Child Focus encourages the parent to contact the Central Authority so that a file can be opened there in order to start return proceedings under the relevant legal instrument.

There are fewer overlapping files between the Central Authority and the Ministry of Foreign Affairs. This is a result of a clear division of tasks among the ministries. The Central Authority has a mandate under several international conventions and agreements. These include the Hague Convention (1980), the Luxemburg Convention (1980) and the bilateral agreements with Morocco and Tunisia. Therefore, if a child is abducted to one of the countries in which return proceedings are possible according to an international legal instrument, the file will be opened at the Central Authority. The Ministry of Foreign Affairs, on the other hand, has a different mandate. Its authority encompasses the seeking of diplomatic solutions. This way of solving conflicts regarding child abduction is most often used when no legal instruments are available. In this sense, the Ministry of Foreign Affairs deals with abductions to countries with which Belgium has no international agreement. However, it may happen that the legal process has run its course, but that the return of the child is still lacking. In such cases, the Ministry of Foreign Affairs occasionally attempts to assist through its network of diplomats. In such instance, there might be an overlap in files between the Central Authority and the Ministry of Foreign Affairs.

In order to obtain an accurate picture of the child abduction cases in Belgium, it was important to find the overlapping files and ensure that every incidence of child abduction was recorded only once. In order to respect the privacy of the persons concerned, and to be in compliance with the Belgian legislation on privacy, it was not appropriate for Child Focus and the ministries to exchange lists of the files they had in their archives. The chosen method was to work through an intermediary. This role was taken up by Mr Baudouin Vanderhulst, Honorary Ambassador.⁴ He was provided with lists of the cases and he compared them. In this way he was able to ensure that every case was taken up in the data to be analysed only once.

Files were coded according to a list of 90 variables. These variables included information on the following:

• The abducting parent, including his or her relationship to the child, age, nationality/ies, place of birth.
• The left-behind parent, including his or her relationship to the child, age, nationality/ies, place of birth.
• The child(ren), including their date of birth, nationality/ies, place of birth.
• The family situation, including the principal residence of the child, the contact arrangements for the other parent, the way in which this situation was established (eg by judgment), the primary caretaker factually.
• The abduction, including the date, the countries from where and to which the child was abducted.
• The return and proceedings leading to the return, including mediation.
• The situation after the closing of the case (whether or not the child has returned), including the (new) residence and contact arrangements for the child and the way in which the solution was reached.⁵

B Methodology for the Qualitative Research

While coding the data at the Central Authority, at the Ministry of Foreign Affairs and at Child Focus, a number of files were chosen where it was deemed appropriate for the parents to be interviewed. Only the closed files were taken into account for this selection, as interviews in such files could address the entire sequence of events, including the return or non-return and the aftermath of the abduction, including the altered family life.

The criterion of a ‘closed’ file is not entirely clear, as has been explained above (concerning ‘open’ cases).⁶ In instances where the child had returned, a case could be considered closed. On the other hand, a parent could decide to abandon the proceedings and to resolve the situation. A file could be closed for this reason. A judgment refusing the return of the child might also cause the closure of a case, although this is not necessarily so. As has been explained above with regard to the cases at the Ministry of Foreign Affairs, a parent might continue to search for other solutions, such as visitation rights in the country where the child now lives. In some instances, therefore, the case stays ‘open’ for a long time.

Often, the proceedings on the return have been completed, while criminal proceedings are still pending. It might also be that custody or parental authority proceedings are still going on in Belgium or in a foreign country. In these cases, the administrative files at Child Focus and the ministries might be closed. These files were deemed appropriate for interviewing. However, in this category of cases, it seemed too sensitive a time to interview both parents in the same case. In cases where the tensions were still high, the emotional interests of the family should outweigh the objective of obtaining research results. An interview, even one with carefully formulated questions asked from as neutral a standpoint as possible, might cause emotions to flare up. Care was therefore taken not to interview both parents in the same file in such situations. Some of these parents were concerned that their ex-partners should not be aware of their involvement in the study. They were of course assured of the anonymous nature of the analysis and report.

The selection of interviewees was not done by computer, but manually. There were several reasons for such manual selection rather than random computer selection. First, each case is different from the other. There are many objective elements that can vary (for instance the number of children in the family, whether the mother or father was the abductor and the destination of the abduction). While these objective elements could have been identified by computer selection, there are a number of elements that were not taken up in the coded data, but that were relevant for the selection. These could not have been identified by computer. They include the language(s) that the parent speaks and the possibility of communication between the parent and the interviewer on sensitive issues such as the parent’s personal experiences.

The final check about whether it would be appropriate to take an interview in a particular case was left to the person who had handled the file (case manager). This person often possessed (subjective) information that was not included in the file. He or she in some cases also knew whether there had been further developments in the file after it had been closed. In one case, for instance, a second abduction was taking place when the taking of an interview was considered. The case manager’s information led to a decision not to take the interview. A case manager would also have information about how severe the media attention was to a particular file, whether a parent is able to talk about what has happened and so forth.

Another reason for not working with computer selection was that the coding took a long time. Manual selection had the practical advantage that some interviews could take place before all files had been coded. This was necessary for logistical reasons: due to the structure of the funding, the research had to be completed within one year, while it took a lot of time to get privacy clearance before we could start with the coding of the files. Therefore, it was not possible to wait for the completion of the coding before starting the interviews.

In selecting files for interview, attention was paid to finding files that represented the differences between the cases. Care was taken to select abduction cases from and to Belgium, to include cases where countries from different parts of the world were involved, and to interview mothers and fathers.

It was considered important to interview not only left-behind parents. However, there were many practical hurdles to get hold of abducting parents. In most cases one would have to obtain their contact details from the left-behind parent, who was generally the person who had opened the file with one of the ministries or with Child Focus. This also means that the left-behind parent would have to agree to his or her ex-partner being interviewed. In many cases parents were not prepared to ask this of the ex-partner. Relationships were often still strained. In one case, the left-behind parent did agree, but the abducting parent did not wish to take part in the study. In many cases the abducting parent did not live in Belgium. It has been possible to interview only two abducting parents, or presumed abducting parents. One of them had herself opened a file with Child Focus when she arrived in Belgium. The other one had moved to Belgium with the permission of the child’s father, but he subsequently introduced return proceedings. These proceedings were not successful and the return of the child was not ordered. This mother therefore cannot be accurately regarded as an abducting parent. However, she had been involved in legal proceedings and she could provide a perspective of the impact of the proceedings on her and her son that was certainly worth including in this study.

Child Focus also wanted to interview 16 or 17-year-olds who had been abducted. However, several members of the Steering Committee at various occasions raised objections to this idea. The members stated that it would only be permissible to interview a minor if both parents ag...