+ International Child Abduction and Domestic Violence
Merle H. Weiner Philip H. Knight Professor of Law University of Oregon August 24, 2016
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+ https://law.uoregon.edu/explore/ merle-weiner/scholarly-work
International Child Abduction and the Escape from Domestic Violence, 69 Fordham L. Rev. 593 (2000).
The Potential and Challenge of Transnational Litigation for Feminists Concerned About Domestic Violence Here and Abroad, 11 Amer. U. J. of Gender, Soc. Pol. & Law 747 (2002).
Navigating the Road Between Uniformity and Progress: The Need for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 33 Colum. Hum. Rts. L. Rev. 275 (2002).
Strengthening Article 20, 38 U.S.F. L. Rev. 701 (2004), republished in [2005] International Family Law 187.
Using Article 20, 38 Fam. L. Q 583 (2004).
Half-truths, Mistakes, and Embarrassments: The United States Goes to the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, [2008] Utah L. Rev. 221.
Intolerable Situations and Counsel for Children: Following Switzerland’s Example in Hague Abduction Cases, 58 Am. U. L. Rev. 335 (2008).
Uprooting Children in the Name of Equity, 33 Fordham Int'l L. J. 409 (2010)
Shrinking the Bench: Should United States Federal Courts have Exclusive or Any Jurisdiction to Adjudicate ICARA Cases? 9 J. of Comparative L. (U.K.) 192 (2014).
Objectives + As a result of participating in this webinar, you will be better able to:
1) Understand that domestic violence motivates acts of abduction, for both perpetrators of domestic violence and victims of domestic violence.
2) Articulate the purpose of the Hague Convention on the Civil Aspects of International Child Abduction and describe how it generally works.
3) Appreciate the difficulty that the Hague Convention on the Civil Aspects of International Child Abduction poses for victims of domestic violence who flee transnationally with their children for safety.
4) Identify at least one new strategy for addressing the complexity that these cases present.
+ Two Stories About Parental "Abduction” and Domestic Violence
Flight to Safety
Parental Abduction Retaliation/Control
Protection
+ Katheryn, Rebecca, and Leslie, ages 9, 10, and 7
The Denver Post, March 25, 2008 at 11:27 am, at http://www.denverpost.com/2008/03/25/dougco-mom-whose-kids-were-killedtakes-case-global/
+ Two Stories About Parental "Abduction” and Domestic Violence
Flight to Safety
Parental Abduction Retaliation/Control
Protection
+ Two Stories About Parental "Abduction” and Domestic Violence
Flight to Safety
Parental Abduction Retaliation/Control
Hague Convention Works Well
Protection
+ Two Stories About Parental "Abduction” and Domestic Violence
Flight to Safety
Parental Abduction Retaliation/Control
Protection
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Domestic Violence Occurs In All Countries “Women across the world, regardless of income, age or education, are subject to physical, sexual, psychological and economic violence…. Intimate partner violence accounts for the majority of women’s experience of violence.” United Nations Dep’t of Economic and Social Affairs, The World’s Women 139 (2015).
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Why the “Abductor” Leaves
Protection for Domestic Violence Victims Varies Dramatically by Country
Laws Don’t Always Protect
“In many cases, even when women do seek help from state institutions such as the police, health and social services and the justice system, the response can be inadequate. Not all countries have laws on violence against women… Even when domestic violence laws exist, this does not always mean they are implemented, or implemented in ways that actually help women.”
United Nations Dep’t of Economic and Social Affairs, The World’s Women 160 (2015).
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https://gspp.berkeley.edu/assets/uploads/page/HagueDV_final_report.pdf
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Resources in the Other Country Did Not End the Violence
+ Barriers Facing Women and Children “Mothers were unable
to access helpful resources in the other country, so they left with their children to seek safety and support of family members in the United States.”
+ Two Stories About Parental "Abduction” and Domestic Violence
Flight to Safety
Parental Abduction Retaliation/Control
Hague Convention Works Well
Protection
Hague Convention Doesn’t Work Well
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Cassandra Hasanovic
The Daily Mirror, 2/17/14, http://www.mirror.co.uk/news/uk-news/cassandrahasanovic-inquest-mum-stabbed-3155912
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Danyela and Deyen Perisic
CBCNews, Dec., 15, 2010, http://www.cbc.ca/news/canada/montreal/family-mournsmontreal-boy-s-death-in-texas-1.878443
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Injustice
International Abductors
69% are mothers 88% of the mothers are primary caregivers Hague Conference on Private International Law, Prelim. Doc. No. 8A, A Statistical Analysis of Applications Made in 2008 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 5-6 (Oct. 2011).
Many of these abductors allege they are victims of domestic violence .
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Q25: Is the issue of domestic violence or abuse often raised as an exception to return in child abduction cases?
Argentina: “often allege these doings”
Canada
British Columbia: “routinely raised” Quebec: “increasingly”
New Zealand: “often raised”
Paraguay: “These are the allegations most made by removing mothers to justify the act.”
Poland: “frequent occurrence”
Romania: “frequently involved”
Slovakia: “raised almost in every case”
Colombia: “almost always is alleged by the party opposing reunification”
Ecuador: “often used”
Finland: “quite frequently used arguments”
South Africa: “vast majority”
France: “frequently invoked”;
Sweden: “quite frequently”
Iceland: “often raised”
Ireland: “used increasingly”
Spain: “every day there are more cases in which international removal of minors is produced as a result of domestic violence”
Israel: “often raised”
United Kingdom (Scotland): “growing incidence of such allegations”
Netherlands: “frequently invoke”
United States: “frequently raised”
Prelim. Doc. No. 2, Collated Responses to the Questionnaire Concerning the Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, p. 309-319
Hague Convention on the Civil Aspects of International Child Abduction n Completed in 1980
n U.S. became a party to it in 1988 Approximately 80 countries are in a treaty relationship with the U.S.
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Department of State, Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, Apr. 2010, p. 9 Note: Japan Republic of Korea, Singapore, Thailand, Trinidad and Tobago are now also treaty partners.
International Child Abduction Remedies Act of 1988 Federal and state courts have concurrent jurisdiction.
+ Problem: Parents were abducting their children to other countries in order to obtain de facto or de jure custody.
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Objectives of the Hague Convention on the Civil Aspects of International Child Abduction To
secure the prompt return of children wrongfully removed to or retained in any Contracting State.
To
ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Remedy of Return ✔Reestablish the factual status quo ✔Do it quickly ✔ Make it easy procedurally ✔Why?
• Discourage abduction • Locate the custody contest where most of the relevant evidence will be • Get the child back to his or her familiar surroundings
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This is not a custody contest.
The Application of the Convention: The Prima Facie Case • Wrongful Removal or Retention (article 3) • Breach of“Rights of Custody” • Rights were“Actually Exercised” • Habitual Residence (article 4)
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There are FIVE exceptions to the return of a child under the Hague Convention
Defenses/Exceptions Article 12 'well-settled exception’: the child need not be returned if one year has elapsed since the wrongful removal or retention and the child is now settled in his or her new environment. Article 13(a): the child need not be returned if the person seeking the child's return“was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.” Article 13(b): the child need not be returned if“[t]here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Article 13 (unnumbered portion): the child need not be returned if the child objects to being returned and is of an age and maturity to understand the situation. Article 20: the child need not be returned if to do so would be prohibited by“the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
Defenses (“Exceptions”) •
Defenses are exclusive
•
Narrowly interpreted
•
Courts think they have discretion to return even after the defense is established.
Article 13(b) The child need not be returned if “[t]here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
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https://gspp.berkeley.edu/assets/uploads/page/HagueDV_final_report.pdf
Seriousness of Cases + “Most of the mothers in this study faced serious physical and sexual assaults, coupled with life threatening behaviors by their husbands that led these mothers to believe that their and/or their children’s lives were in danger.”
Tbl. 3.5.
The children experienced violence +
“The children in these homes were often also physically assaulted or exposed to extensive violence against their mothers resulting in reported profound effects on the children, consistent with a growing social science literature on child exposure to violence.”
Tbl. 3.4
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“Overall, these results indicate that the women and children in this study often faced severe and sustained exposure to domestic violence prior to the mothers’ decision to flee the other country. For the majority of the women, this violence included serious physical assaults against them, coupled with a degree of threatening behavior that led the women to believe that their and/or their children’s lives were in danger. They were often isolated from family members and friends, prevented by their husbands from having independent access to financial resources and/or exposed to threats based on their immigrant status.”
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Women more often than not lost.
“The majority of women in this study had their children returned to the other country by U.S. courts, and most of the time this meant the children’s return to a life with the mothers’ violent husbands.”
Children returned to other country (n = 12) 55%
Children remained in U.S. (n = 10) 45%
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Courts Don’t Recognize the Harm to Children from Domestic Violence
“In only one of the mother’s cases did a U.S. court explicitly recognize a child’s exposure to domestic violence as potentially harmful to the child.”
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof
The defense in article 13(b) and the defense in article 20 must be established by clear and convincing evidence.
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof
2) Expedited Schedule
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof
2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof
2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues
4) Failure of Courts to View Harm to the Respondent as a Harm to the Child
A few examples….
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“Although there is evidence that Ouesada raped and abused K. Stoner, ‘any instances of physical abuse by Petitioner were limited incidents aimed at persons other than the child[ren] at issue, and thus are not sufficient to support application of the ‘grave risk’ exception.” Avendano v. Smith, 806 F. Supp. 2d 1149, 1177 (D. N.M. 2011). “[Respondent testified that petitioner] used physical force on her at times and threatened both of their lives if she ever attempted to leave him. The Court acknowledges the gravity of these accusations…[But] Respondent presented no evidence that the Children are aware of any incidents of abuse or…Petitioner ever abused…the Children themselves….” Mendoza v. Esquivel, 2016 WL 1436289 (S.D. Ohio Apr. 12, 2016).
“Even with allegations of physical abuse to the spouse, grave risk is not proven when there is no evidence that the non-abducting party physically abused the children.” In re A.V.P.G. & C.C.P.G., 251 S.W.3d 117, 128 (Tex. Ct. App. 2008).
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof
2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues
4) Failure of Courts to View Harm to the Respondent as a Harm to the Child 5) Judicial Inexperience with Domestic Violence
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof
2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues
4) Failure of Courts to View Harm to the Respondent as a Harm to the Child 5) Judicial Inexperience with Domestic Violence
6) Undertakings
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Reliance Upon Undertakings
Empirical Work on Undertakings
REUNITE study: Small Sample (21 cases, 12 cases had undertakings, 6 cases had undertakings about violence). In every case where there was an undertaking given related to violence, the undertaking was violated.
Cite: http://www.reunite.org/WEBSITEREPORT.doc
+ Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir 2007). •
“Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.”
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Obstacles to A Successful Article 13(b) Defense
1) Burden of Proof 2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues 4) Failure of Courts to View Harm to the Respondent as a Harm to the Child 5) Judicial Inexperience with Domestic Violence 6) Undertakings 7) Trusting the Habitual Residence: Ameliorative Measures
Obstacles to A Successful Article 13(b) + Defense 1) Burden of Proof 2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues 4) Failure of Courts to View Harm to the Respondent as a Harm to the Child
5) Judicial Inexperience with Domestic Violence 6) Undertakings 7) Trusting the Habitual Residence: Ameliorative Measures 8) Conflating the “intolerable situation” language
Article 13(b) The child need not be returned if “[t]here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Obstacles to A Successful Article 13(b) + Defense 1) Burden of Proof 2) Expedited Schedule 3) Courts Minimize the Violence and/or Don’t Figure out Power and Control Issues 4) Failure of Courts to View Harm to the Respondent as a Harm to the Child
5) Judicial Inexperience with Domestic Violence 6) Undertakings 7) Trusting the Habitual Residence: Ameliorative Measures 8) Conflating the “intolerable situation” language 9) Imbalance of legal resources
+ Life is Bad Upon Return
“Fathers used U.S. court Hague decisions to leverage their positions in custody cases upon return of their children to their habitual residence.”
“Women and children faced high levels of hardship when they returned, with many women unable to work in the other country because of their immigration status.”
“Almost half of the women and/or children who returned to the other country were victims of renewed violence or threats by the fathers on their return to the other country.”
“Mothers reported that none of the court ordered or voluntary undertaking aimed at protecting them and/or their children upon return to the other country were implemented.” Edleson, Lindhorst, et al., Multiple Perspectives on Battered Mothers and Their Children Fleeing to the United States for Safety (2010)
What can I do in these cases??
Understand that not all “abductors” are evil.
If you are picking up a child based upon an ex parte order, be prepared. Do a NCIC and state database search. Involve victim services or child protective services. Trust your instincts. Document what she is saying and what the child is saying. Tell the person she needs a lawyer and refer her to a shelter and/or legal aid.
If a child is being returned to your jurisdiction, and the “abducting” parent says she is a victim of domestic violence, know that the situation is high risk. If there are undertakings from another court, use mandatory arrest laws, etc., to pick up the alleged abuser for violations of your law. Trust your instincts. Involve CPS if you have concerns. Document events.
Advocate for changes in the law.
+ If a domestic violence victim is facing a Hague petition, make sure she knows about this resource and refer her to Legal Aid and a DV services: Available
DV.org
on-line at Hague
If
she is abroad and needs legal advice about how the Hague Convention operates and what to do, here is a resource: American
Overseas Domestic Violence Crisis Center, at http://www.866uswomen.org/
+ Safety is More Important Than Which Country Adjudicates Custody
Elisa Pérez-Vera, Explanatory Report to the Convention, ¶ 29 (1982).
Discussing the article 13(b) exception:
“[T]he interest of the child in not being removed from its habitual residence . . . gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation.”
Our approach to the Convention should follow this wise advice.
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Questions?
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The End
Points of view or opinions expressed in this webinar are those of the presenter(s) and do not necessarily represent the official position or policies of OJJDP or the U.S. Department of Justice.
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