International Parental Child Abduction: shifting focus from private law remedies to public law remedies

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International Parental Child Abduction: shifting focus

from private law remedies to public law remedies

This is a master thesis for the Master International and European Law: Public International Law University of Amsterdam

By Coos Maas,

Supervisor Harmen van der Wilt Friday, 21 December 2018

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Abstract

This research paper is about the problematics of international parental child abduction, the remedies available to the left-behind parent and an orientation of international criminal law in regards to international parental child abduction. The main question to be answered is whether or not the left-behind parent is sufficiently protected by family law conventions or if he or she would have a better position to retrieve her child under international criminal law. The system currently used to combat international parental child abduction cases is based on international private/family law, to wit, The Hague Convention on Civil Aspects of

International Child Abduction. This is an effective but not flawless approach to the problematics that parental child abductions can bring. The Hague Convention especially leaves room for improvement in the localisation of the child and the enforcement of return orders.

This research also discusses whether international criminal law could aid in improving the remedies available to left-behind parent. It is discussed how such a provision could be shaped and what modalities of criminal law, such as extradition or mutual legal assistance should be incorporated.

Human rights are taken into account as this paper includes provision of the UN Convention on the Rights of the Child and case law of the European Court on Human Rights in its research.

In an analysis it becomes clear that international parental child abduction would be best combatted when the provisions of international private law and international criminal law work side-by-side. The cooperation of the two system will leave enough space for peaceful settlements by offering child abductors the opportunity to voluntarily return the child to the left-behind parents, it contributes to the enforcement of court decision (either return order or criminal sentences) and the use of police forces could help with the localisation of the child. This also means that the left-behind parent would benefit more if States decided to adopt a criminal law convention on the subject of international parental child abduction.

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Introduction

Most abducted children are not abducted by strangers, instead they are taken by one of their parents. This happens for a wide variety of reasons, but it usually occurs when a custodial order is not viewed as being “fair” by one of the parents or even before the parents

separate. When children are being taken cross border, it may prove to be difficult to return them to their lawful parent.

International parental child abduction is most likely a consequence of globalization as well as the growth (and subsequent the breakdown) of international marriages. Before this research continues it is important to explain what is meant by the term “parental child abductions”.

1.1. Definition of international parental child abduction

The definition of parental child abduction is subject to debate. Nonetheless, I would like to set out the elements involved: Child abduction typically occurs following a prior dissolution of the household of two adults that make it impossible for their child or children (person or persons under the age of sixteen) to continue to live with both of them (1). The abductor must

be one of the two former joint-caregivers1

(2); he or she must have acted unilaterally (3) and

his or her action must result in the permanent transfer of the child’s residence abroad (4).2

According to the explanatory report connected to The Hague Convention on civil aspects of international child abduction, “the characterization of the removal or retention of a child is made as wrongful conditional upon the existence of a right of custody which give legal content to a situation which was modified by those very actions which it is intended to prevent.”3

In conclusion, international parental child abduction thus occurs when one of the biological parents (or care-givers) takes the child away to another country contrary to the custody rights of another parent.

1_{Joint-caregivers are also adoptive parents and grandparents who are the sole caretakers of the child}

involved.

2_{Directorate-General for Internal Policies, 'Cross-border parental child abduction in the European}

Union', European parliament, Study for the LIBE Committee (2015), p. 56, §3.1.2.

3_{Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, HCCH}

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1.2. Statistics of international parental child abduction4

Over the past ten years, international parental abductions have risen by 88%. Within the EU, 1.800 children are taken to another country by one of their parents in contradiction to custody

agreements, every year.5

This is problematic because there are only a few remedies available to the left-behind parent to regain control over his or her child and virtually none when the

child is taken to a non-Hague country.6

Mothers are more prone to abduct their children, as becomes apparent from the last report on international parental child abduction. 73% Of the abductors were the mothers of the children in a total of 2.652 cases; 24% of abductors were fathers and the remaining 2% were

grandparents, institutions or other relatives, such as step-parents or siblings.7

Furthermore, 1 out of 4 parents stated that they did not think it a crime to take their child to

another country without the other parent’s permission8_{, even though in most States abduction}

is a misdemeanour and in some States parental child abduction is categorized as a crime.

1.3. Outlining of this research paper

This research paper will strictly focus on the scenario of international child abduction by biological parents or caregivers such as adoptive parents or grandparents. The paper will discuss the situations where the abducting parent either has shared custody rights or no custody rights at all. When a parent has the sole custody over the child and decides to move this child to another State it will not qualify as cross-border parental child abduction, and such cases will therefore not be a part of this research paper.

4_{Brandon Gaille, 21 Unbelievable International Child Abduction Statistics - BrandonGaille.com, 28}

May 2017 <https://brandongaille.com/20-unbelieveable-international-child-abduction-statistics/> [accessed May 20].

5_{Marieke Putters, Centrum Internationale Kinderontvoering, eWELL}

<http://www.kinderontvoering.org/ewell.html> [accessed December 19 2018].

6_{A State that did not sign The Hague Convention on Civil Aspects of International Child Abduction}

(see also chapter 2).

7_{This number only represents cases routed through Central Authorities of States hat have signed The}

Hague Convention.

Nigel Lowe and Victoria Stephens, A Statistical analysis of applications made in 2015 under the

Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction —

Global report part 1, HCCH 2018.

8_{Brandon Gaille, 21 Unbelievable International Child Abduction Statistics - BrandonGaille.com, 28}

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First of all, the research will focus on the system(/convention) that is now in place and deals with international parental child abduction situations (family/private law based) and the remedies currently offered by that system to left-behind parents. This paper will also discuss the effectiveness of this family law orientated approach. Then the possibility of

(internationally) criminalising international parental child abduction through a new

convention will be discussed, how this international criminal convention would have to be codified and what modalities of criminal law can be used. Human rights conventions, such as the European Convention on Human Rights, will also be taking into consideration in this research. The fictive criminal law convention provision will be compared with the already existing system in order to determine which will provide better legal remedies for the left-behind parent. The UN Convention on the Rights of the Child will also be included in that comparison.

1.4. Research methods and research questions

This thesis will focus on the question whether parents are sufficiently protected by the legal remedies currently available against international parental child abduction provided for by family law or whether the act of international parental abduction should be internationally criminalised for better protection. While researching this question it will be taken into account which remedies are in the best interest of the child.

This question will be answered by focussing on how international parental child abductions are dealt with at present and whether the 1980 Hague Convention on the Civil Aspects of International Child Abduction has proven to provide effective for the left-behind parent with custody rights. It will be examined if it would be possible to criminalise parental child

abduction internationally and whether this would improve the remedies currently available to the left-behind parents. Human rights law will also be discussed. The best interest of the child will also be taking into account in the analysis of the remedies available to the left-behind parents of both legal field (family and criminal law). National laws, case law, handbooks, blog posts and articles on this subject will provide the information for this research.

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2.

The Hague Convention on the Civil Aspects of International Child

Abduction.

2.1. Brief introduction to The Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction (from now on: The Hague Convention) has been adopted in 1980. 98 States around the world have signed

and ratified this convention, including all EU Member States.9

All of these States have also ratified the 1989 UN Convention on the rights of the Child and the 1980 European convention

on Custody of Children (and parental responsibility with the exception of Italy).10

The Hague Convention is based on International Private Law. It focuses on agreements between natural persons whereas criminal law, which falls under a system of public law, imposes obligations on natural persons that can be sanctioned by the State if violated. The question whether a child is wrongfully removed from its other parent’s custody therefore depends on the custody agreement the parents made after the separation, the custody

agreement that has yet to be made or was laid upon them after going to court. This also means that the term “wrongfully removed” would be judged based on different custody arrangements in every case.

The application of family law is especially complex due to the different cultural, social and

religious values in different states and because every country has its own judicial system.11

The Hague Convention is only applicable to children under the age of sixteen who were living

in a contracting State before any breach of custody or access rights.12

The objective of The Hague Convention is to prevent and react to the removal of a child from the family and social

9_{Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague}

Conference on International Private Law 12 November 2018

<https://www.hcch.net/en/instruments/conventions/status-table/?cid=24> [accessed 27 November 2018].

Union', European parliament, Study for the LIBE Committee (2015), p. 59.

11_{Sara E. Reynolds, 'International Parental Child Abduction: Why we need to expand custody rights}

protected under the Child Abduction Convention' [2006] Vol. 44 (No. 3) Family Court Review, p. 466.

12_{Hague Conference on Private International Law, Hague Convention on the Civil Aspects of}

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environment in which his/her life has developed.13

The Hague Convention aims for the restoration of the status quo, meaning: “the prompt return of children wrongfully removed to

or retained in any Contracting State”.14

Remedies for the breach of the rights of custody and breach of the rights of access are given under article 12 and article 21, on which I shall later elaborate.

The Hague Convention is based on the presumption that the wrongful removal or retention of a child across international borders is not in the best interest of the child, and that the return of the child to the State of the habitual residence is in his or her best interest. By vindicating the right of the child to have contact with both parents, by supporting continuity in the child’s life, and by ensuring that any determination of the issue of custody or access is made by the most appropriate court having regard to the likely availability of the relevant evidence, The

Hague Convention protects the abducted child.15

This chapter shall illustrate the application of The Hague Convention, discuss the remedies this convention offers to the left-behind parent and its advantages and disadvantages.

2.2. Application of The Hague Convention on Civil Aspects of International Child Abduction

The Hague Convention is not self-executing. All Member States to the convention must

establish a Central Authority (from now on: CA) with administrative duties and functions.16

These duties include locating the abducted child, instituting proceedings of a safe return, providing legal assistance and counsel and providing information concerning the laws of the

State or background of a child in conjunction with an application.17

However, it is important to note that these duties may be different between member States; the scope of the role of the CA is open for interpretation. For instance, the CA in England and Wales has a limited

International Child Abduction, 25 October 1980, Hague XXVIII, art. 1a.

15_{HCCH, Outline of the Convention on Civil Aspects of International Child Abduction}

<https://assets.hcch.net/docs/e6a6a977-40c5-47b2-a380-b4ec3a0041a8.pdf> [accessed May 20].

17_{Monica Marie Copertino, Hague Convention on the Civil Aspects of International Child Abduction:}

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administrative function, whereas in Germany the duties of the CA are being carried out by the

Federal Prosecutor at the Federal Court of Justice.18

Each contracting State shall also have to implement the provisions of the The Hague

Convention.19

When a child has been abducted, the left-behind parent can request the CA of his or her own State to help start The Hague Convention proceedings (the left-behind parent will then be referred to as “the applicant”). The CA of the State of the applicant contacts the CA of the State to which the child has been abducted in order to start the proceedings. That CA will, hopefully, bring the case before a judge within due time in order to ensure the prompt return of the child. However, a CA cannot be forced to do so.

Again, the working methods of the CA’s differ per Convention party. The English CA, for instance, virtually acts as a litigant in the proceedings. After receiving an application, it will instruct private solicitors to act on the applicants’ behalf. It has set itself a target for

forwarding the applications within 24 hours. However, it will not contact the abductor at this

stage and therefore leaves no room for a voluntary settlement through the use of this CA.20

In Germany, the CA will first determine if the application meets the requirements of The Hague Convention, as is done England, and verify that all documents are filed. Once all needed documents have been received and costs for an attorney have been made, the CA will

normally institute proceedings and write to the abductor to invite him or her to return the child

voluntarily.21

The prompt return of the child is facilitated by the return order. A return order is not a custody determination. It is simply an order that the child be returned to the jurisdiction which is most

appropriate to determine custody and access.22

A court usually decides on applications for a

18_{Nigel Lowe, ‘To the Best Interest of the Child? Handling the Problem of International Parental}

Child Abduction’ in Thilo Marauhn (ed), Internationaler Kinderschutz (Mohr Siebeck Tübingen 2005), p. 82-83.

International Child Abduction, 25 October 1980, Hague XXVIII, art. 2 and 4. See also: Monica Marie

Copertino (n. 17), p. 723.

20_{Nigel Lowe (n. 18), p. 83.} 21_{Nigel Lowe (n. 18), p. 84.}

International Child Abduction, 25 October 1980, Hague XXVIII, art. 19. See also: HCCH, Outline of

the Covention on Civil Aspects of International Child Abduction

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return order within six weeks of receiving that application. Appeals can lead to fifteen weeks

of delay.23

The text of The Hague Convention does not entail a clear deadline for the court to decide on applications for return orders, it simply entails that Contracting States shall act “expeditiously”.24

Before a court can decide to give out a return order, it must first decide whether the removal or retention qualifies as ‘wrongful’. Removal or retention can only be wrongful if it

undermines the joint or sole custody rights under the State laws of the habitual residence25

and

if those rights were actually exercised at the time of removal or retention.26

The establishment of whether the removal or retention is wrongful can either be based on a breach of a court

order, but also by reference to the applicant’s rights under the law of the habitual residence.27

This means that the court of State A will have to decide on the custody laws of State B. Some nations have assigned a single court to deal with The Hague Convention applicants, such as

England or the Netherlands,28_{while other States may decentralise the ruling on applications}

under The Hague Convention throughout the State. For instance, Germany has confined

jurisdiction to hear Convention applications to 24 family courts.29

According to The Hague Convention, there are two types of parental rights. A parent can have either “custody rights” or “access rights”. Custody rights are the “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of

residence”.30

Access rights include “the right to take a child for a limited period of time to a

place other than the child’s habitual residence”.31

This means that, for the purpose of The Hague Convention, parents with access rights cannot utilise The Hague Convention

23_{Nigel Lowe (n. 18), p. 84-85.}

International Child Abduction, 25 October 1980, Hague XXVIII, art. 11.

28_{In England this is the Family Division of the High Court, in the Netherlands it is the Civil Court}

situated in The Hague Nigel Lowe (n. 18), p. 84.

29_{Nigel Lowe (n. 18), p. 85.}

International Child Abduction, 25 October 1980, Hague XXVIII, art. 5. See also: Maryl Sattler, The

Problem of Parental Relocation: Closing the Loophole in the Law of International Child Abduction, 67 Wash. & Lee L. Rev. (2010), p. 1735.

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proceedings. The Hague Convention does however offer some assistance by directing countries to “take all appropriate measures … to secure the voluntary return of the child … “.32

The Hague Convention provides courts with three refusal grounds for a prompt return:

Firstly, the treaty obligation to return the child lasts one year.33

After one year, the court of the country where the child has been abducted to must return the child unless the abducting parent proves that the child is “settled in its new environment”.

Secondly, Article 12 of The Hague Convention also entails a legitimate refusal to return the child if the child is settled into his new environment due to the length of the judicial

proceedings. This is also the case when the judicial proceedings are lengthy due to the

obstruction of the abducting parent in concealing the new habitual residence of the child.34

A court may also refuse to order the prompt return of the child if the left-behind parent was not actually exercising the custody rights at the time of the removal or retention, or had consented to or subsequently acquiesced in the removal or retention. Furthermore, a court may refuse to order the prompt return of the child if there 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.35

Lastly, according to article 20 of The Hague Convention the return of a child may be refused if this would not be permitted by the fundamental principles of the requested State relating to

the protection of human rights and fundamental freedoms.36

These fundamental principles

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include the principle of the best interest of the child37

, the right to be heard, the right of free

movement and more.38

2.3. Effectiveness of The Hague Convention (advantages and disadvantages)

According to the ‘Statistical Analyses of Applications Made in 2015 Under The Hague Convention’ from a total of 2.652 applications made under The Hague Convention, 2.270 were return applications and 382 access applications. The overall return rate was 45%. This

included 17% voluntary returns and 28% judicial returns.39

In 2008 there was a 46% return rate, in 2003 that was a 51% rate and in 1999 it was 50%. The average time taken to reach a decision of judicial return was 166 days in 2008 and a judicial refusal took an average of 286 days to conclude. In 2015 applications were generally resolved within 158 days (decisions of

judicial return) and 245 days (a judicial refusal).40

Even though The Hague Convention has a noble purpose and good intentions, there is much differentiation between the applications by its Member States.

“One of the main obstacles to a coherent implementation of the convention is the use of a private international technique in order to define “child abduction”.”41

The definition of parental child abduction will be based on national law provisions on custody rights. The removal or retention is wrongful as soon as it breaches rights of custody under the law of the State in which the child was habitually resident. It is therefore possible that one State might characterize a certain act as child abduction, while another sees it as a legitimate transfer of residence. The Australian Family Court adopts approaches from the English Court

to establish uniformity among common law countries.42

37_{The principle of best interest of the child will be further explained in chapter 4 of this research.} 38_{Dagmar Coester-Waltjen, The Future of the Hague Child Abduction Convention: The Rise of}

Domestic and International Tensions - The European Perspective, 33 N.Y.U. J. Int'l L. & Pol. 59 (2000), p. 60.

39_{Nigel Lowe and Victoria Stephens, A Statistical analysis of applications made in 2015 under the}

Global report part 1, HCCH 2018, p.3 §10-13.

40_{Nigel Lowe, A Statistical analysis of applications made in 2008 under the Hague Convention of 25}

October 1980 on the Civil Aspects of International Child Abduction — Global report part 1, HCCH

2011, p. 6 §15.

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Ideally, courts would base their judgement on whether the removal or retention was wrongful on the custody laws of the State in which the child was habitually resident, but practice shows

that that is not always the case and that return orders are being refused on other grounds.43

Furthermore, The Hague Convention has no means to ensure the requested prompt return is indeed executed. The Hague Convention offers no enforcement measures for the contracting States. This is problematic because out of the 1.250 outgoing total cases closed in the U.S. in 2013, The Hague Convention proceedings had a 50/50 ratio for either returning the child or

denying a return.44

And as mentioned before, an overall worldwide return rate of 45%.45

The Hague Convention has had a positive effect on the return of abducted children. It has also had an impact on voluntary returns and has had a preventive working on parental child abduction;

the question remains if a return rate 45% is satisfactory.46

There were some successful cases before the European Court of Human Rights (from now on: ECHR) in Strasbourg in which States were held responsible for not taking adequate measures

to enforce a return order. 47

The ECHR decided that failure to meet the positive obligation on States to ensure effective respect for family life to take measures to enforce a parent’s right to be reunited with his or her child to be a breach of article 8 of the European Convention on

Human Rights.48

This obligation is not absolute; the decisive factor is whether all necessary steps to facilitate the child’s return have been taken by the national authority, which, among

other things, is to be judged by how much time it took to implement the return order.49

In chapter four I will discuss two more cases before the ECHR that centralized the question what the positive obligation from States to ensure effective respect for family life entails.

Furthermore, the Hague Convention proceedings often take place in front of judges that have very little – if any – experience with international child abduction cases and it is an unrealistic

43_{For example in the case of M.K. v. Greece (ECHR), this will be further discussed in chapter four.} 44_{Brandon Gaille, 21 Unbelievable International Child Abduction Statistics - BrandonGaille.com 28}

45_{Nigel Lowe and Victoria Stephens, A Statistical analysis of applications made in 2015 under the}

Global report part 1, HCCH 2018, p. 3 §13.

46_{Linda Silberman, The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other}

Issues, 33, N.Y.U. J. Int'l L. & Pol. 221 (2000), p. 223.

47_{Nigel Lowe (n. 18), p. 79.} 48_{Nigel Lowe (n. 18), p. 79.} 49_{Nigel Lowe (n. 18), p. 79.}

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goal to oblige every nation to elect one court to deal with these cases as they do in the Netherlands or in England.

In conclusion, based on The Hague Convention, the left-behind parent should be protected when they file a claim to the CA of their State and that CA files for a return order of the child at the CA of the State to which the child has been abducted. It is problematic that the left-behind parent bears the responsibility that this claim is being filed within due time as well as the responsibility of finding out which State his or her child is abducted to. With the 45% return rate of 2015, it can be concluded that The Hague Convention is effective but it leaves much room for improvement, especially with regards to helping the left-behind parent with locating his or her child as well as with enforcing the return orders given out by courts.

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3. International parental child abduction under international criminal law

3.1. Introduction into international criminal law

Unlike international private law, criminal law falls under a public law system. International public law governs the law (rights and responsibilities) between States, and international criminal law governs prohibitions addressed to individuals and its violations are sanctioned by

States.50

As M. Cherif Bassouni put it:

“A crime under international law is a crime defined by international law which gives rise to the individual criminal responsibility of the perpetrator under international law itself. It

amounts to an obligations, negative or positive, imposed directly on individuals by international law, the breach of which results under international law in the liability of the

perpetrator to punishment.”51

There is a distinction to be made between international criminal law and transnational law; international criminal law contains all criminal aspects of international law and transnational

criminal law contains international aspects of national criminal laws.52_{Parental child}

abduction falls under transnational criminal law as it includes the rules of the national jurisdiction under which a State may enact and enforce its own criminal law and there is an

obvious transnational aspect to this crime.53

Whether or not victims can initiate criminal proceedings against another individual before the State is dependent on the national judicial system. In many countries, such as the Netherlands, Germany, Ireland, Spain and more, victims cannot start proceedings against individuals that

committed such violations before the State.54

Therefore, at first it seems as if international criminal law (from now own: ICL) is of no use in the case of international parental abduction (if the victim would be the left-behind parent and not the child). International criminal law is

50_{Robert Cryer and others, An Introduction to International Criminal Law and Procedure (Third}

edition, Cambridge University Press 2014), p. 3.

51_{M Cherif Bassiouni, International Criminal Law, Volume 2: Multilateral and Bilateral Enforcement}

Mechanisms: Third edition (BRILL edn, 21 Nov. 2008), p. 67.

52_{Robert Cryer and others (n. 50), p.6.} 53_{Robert Cryer and others (n. 50), p 6.}

54_{European Commission, Rights of victims in criminal proceedings, Europe E-Justice 10 November}

2017 <https://e-justice.europa.eu/content_rights_of_victims_of_crime_in_criminal_proceedings-171-cz-en.do?member=1> [accessed December 15 2018]

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used for prosecution and punishment, but is also essential for respect for the law and serves as a deterrent from committing certain crimes.

ICL is enforced through two systems, namely the direct and indirect enforcement system. The direct system refers to international judicial institutions that investigate, prosecute, adjudicate

and enforce sanctions.55

In the case of International Child Abduction one of the international

institutions that would come in to play could, for example, be Interpol.56

The indirect enforcement system refers to national incorporation of internationally prohibited conduct by means of criminalising such conduct in domestic criminal laws, prosecuting persons within the national jurisdiction and punishing those found guilty in accordance with national sanctions.

When using the direct enforcement system and the indirect enforcement system of ICL, obligations arise from treaties such as the interpretation of an international crime from

customary international law and jus cogens with respect to international crimes.57

Furthermore, international criminal law requires a lot of cooperation between States and from States. It requires “effective and fair national criminal justice systems in their conduct of investigations, prosecutions and adjudication of international, transnational and domestic crimes.”58

This chapter shall set out the principles of ICL and international parental child abduction, more specifically with regards to the available options for a convention and how it could potentially help the left-behind parent.

55_{M Cherif Bassiouni (n. 51), p. 3.}

56_{INTERPOL is a network of police forces, it helps police in different countries to work together to}

solve crimes that cross border. The Interpol offices in each member country share information with each other.

Interpol, What is Interpol?, INTERPOL 2012 <https://www.interpol.int/ipsgapp/educational/what-is-interpol.html > [accessed 15 December 2018].

57_{M Cherif Bassiouni (n. 51), p. 3.} 58_{M Cherif Bassiouni (n. 51), p. 11.}

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3.2. Practice of criminalising international parental child abduction in national codes

Criminal sanctions in the situation of parental child abduction is to be handled with caution since it contradicts most countries legislative policies focussing on the peaceful settlement of

the conflict between parents in the best interest of the child.59

It would be wise to keep this in mind when formulating a criminal convention due to the need for many signatory States in order for the convention to be successful. States could also profit from criminalising international parental child abduction. Such a criminal provision could serve the public interest by protecting the rights of the State’s subjects such as security or the right to family life. Criminalising parental child abduction could further improve the respect for the State’s rule of law regarding the creation of custody arrangements.

As mentioned previously, there are countries that already specifically criminalise parental child abduction (such as Belgium, Lithuania, Spain, Russia, the United States and the UK). Other countries have criminalised abduction, just not specifically for parents (such as Czech Republic, Denmark, Germany, France, Italy, Hungary, The Netherlands, Austria, Poland,

Slovakia and Sweden).60

In the U.S., parental child abductions are dealt with by criminal law, namely the Parental Kidnapping Prevention Act (PKPA) adopted by the Congress in 1980. All fifty States also adopted the Uniform Child Custody and Jurisdiction Act (UCCJA) and imposed criminal

liability for parental kidnapping.61

Furthermore, there is the International Parental Kidnapping Crime Act of 1993 (IPKCA). The IPKCA was established to compliment The Hague

Convention by providing federal criminal penalties for persons who abduct children in to

non-Hague countries.62

This system is a good example of how an international criminal convention on international parental child abduction could be shaped. However, the system is not

flawless. It seems that the courts in some States seem to prefer to prosecute a parental

59_{This is also promoted by article 7 of Hague Convention on the Civil Aspects of International Child}

Abduction

Union', European parliament, Study for the LIBE Committee (2015).

61_{Valerie Brummel, Parental Kidnapping, Criminal Contempt of Court, and the Double Jeopardy}

Clause: A Recommendation for State Courts, 106 J. Crim. L. & Criminology (2016) Vol 106, No. 2, p. 317.

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kidnapper by holding them in contempt of court for violating child custody orders.63

After that they can no longer be held criminally responsible for child abduction since that would go in

against the double jeopardy rule.64

3.3. A criminal international parental child abduction convention

In order for an international criminal law convention to work, expanded jurisdictional mechanisms need to be in place, as well as the recognition and enforcement of foreign penal judgments and enhanced modalities of international cooperation in penal matters. More importantly: new domestic legislation on substantive and procedural aspects of ICL needs to

be developed.65

In the case of international parental child abduction I suggest a treaty or convention which requires States to criminalise this behaviour in their domestic law to bring offenders to justice who are on their territory or to extradite these offenders so another State can do so.

There has been some debate whether or not treaties can directly place liability on individuals and therefore not be a direct source of ICT. It can however; according to the Permanent Court

of International Justice, the intent of the drafters is the decisive factor.66

This part of the research is based on the work of national police forces and international organisations (such as Interpol). However, I should note that the envisaged convention would later still rely on other authorities of States in order to facilitate the return of missing children.

Conventions may be drafted or concluded by parties in any manner they wish, there is no from or procedure parties are obligated to follow. However, there are certain rules that apply

in the formation of international conventions.67

This aspect falls outside of the scope of this research and will therefore not be further discussed.

63_{Valerie Brummel (n. 61), p.330.} 64_{Valerie Brummel (n. 61), p. 338.} 65_{M Cherif Bassiouni (n. 51), p.4.} 66_{Robert Cryer and others (n. 50), p.9.}

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3.3.1. Definition of the crime and scope

A fundamental principle of criminal law is the Nullum crime sine lege principle, which entails that criminal responsibility can only come from a pre-existing prohibition of conduct that has

criminal consequences.68

As mentioned in the introduction of this research, the exact definition of international parental child abduction is still subject to debate. As a minimum it involves the following elements:

(1). The abductor must be one of the two former joint-caregivers69

(2); he or she must have acted unilaterally (3) and his or her action must result in the permanent transfer of the child’s

residence abroad (4).70

Furthermore, the abduction must be in breach of a custody

arrangement.71

According to United Kingdom abduction laws, international parental child abduction involves the following elements: the taking or carrying away of one person by another (a); by force or by fraud (b); without the consent of the person so taken or carried away (c); without lawful

excuse (d).72

The Parental Kidnapping Prevention Act from the United Stated emphasis the cross border element of parental child abduction and the intent to obstruct the lawful exercise

of parental right.73

The criminal provision in my proposed convention would include the above-mentioned elements. The provision will also include a suitable penalty, comparable to, for instance, the penalty set in the IPCKA. This specific penalty is that the crime of international parental child

abduction is punished with a fine, imprisonment (for no longer than 3 years) or both.74

It is important to keep the penalty very reasonable in order to keep the impact on the family life of the persons involved to a minimum. This would be more in line with the previously

mentioned legislative policies of different States but the possible penalty should still, in

68_{Robert Cryer and others (n. 50), p. 18.}

69_{joint-caregivers are also adoptive parents and grandparents who are the sole caretakers of the child}

involved.

Union', European parliament, Study for the LIBE Committee (2015), p. 56, §3.1.2.

71_{Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, HCCH}

publications, p. 458 §9.

72_{Child Abduction Act 1984.}

73_{Parental Kidnapping Prevention Act (PKPA) (1980) 28 U.S.C. § 1738A.}

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conjunction with the consequences of a criminal record, be serious enough to serve as a strong deterrent against committing the crime of international parental abduction.

3.3.2. Jurisdiction

States exercise jurisdiction within their own territory (based on the territorial principle) and

over their own nationals (based on the nationality principle)75

. The territorial principle and the nationality principle are jurisdictional principles that are accepted by the international

community as being consistent with international law.76

Another type of jurisdiction is the generally accepted universal jurisdiction, which allows States to exercise jurisdiction over

particular offenses.77

Aside from the before mentioned types of jurisdiction, there are a

number of treaties that provide for jurisdiction to suppress certain crimes. Such a treaty would

provide for the exercise of jurisdiction with the acceptation of the International Community.78

It is important to note that this is not the same as universal jurisdiction. The convention envisioned for parental child abduction would base its jurisdiction for States on the

implementation of trying this crime under domestic law. In that way States would accept an obligation to arrest and prosecute alleged parental child abductors. In addition to a jurisdiction provision within the convention, it would also include a provision for mutual assistance and

for the crime of parental child abduction to be included as extraditable offence.79

3.3.3. Modalities of international cooperation in penal matters

ICL requires international cooperation. International cooperation is dependent on modalities that come from the sources of legal obligation. In the case of criminalising international parental child abduction it would be wise to use modalities such as extradition, legal assistance, execution of foreign penal sentences and a possible transfer of criminal

proceedings.80

75_{Furthermore States exercise jurisdiction on the passive personality principle, the protective principle}

and the universality principle.

Malcolm N. Shaw (n. 67), p. 474 t/m 489.

76_{Malcolm N. Shaw (n. 67), p. 474.} 77_{Malcolm N. Shaw (n. 67) p. 485.} 78_{Malcolm N. Shaw (n. 67), p. 489.}

79_{this convention/advised is based on information found on page 489 of the book “International Law”}

by Malcolm N. Shaw (n. 67).

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3.3.3.1. Extradition

Extradition is the surrender of one person by one State to another State.81

Half of the world’s countries do not have national legislation on extradition. Most States that do have legislation

on extradition require the existence of a treaty in addition to the national provision.82

As mentioned under paragraph 3.3.2, an extradition provision could be a part of the convention. However, if this will keep States from signing the convention it would also be possible to

draft a provision entailing that States have a choice between extradition and prosecution.83

This might be a necessity since most nations will not extradite their own nationals84

and it often happens that the abducting parent flees to his or her nation of birth, of which he or she still bears the nationality. Hopefully this problem will solve itself when States are given the option to extradite or prosecute.

Extradition requires double criminality, meaning that the crime charged in the State

requesting extradition must also be a crime in the State where the extradition is requested. It also requires the principle of speciality, meaning that the requesting State can only prosecute

the extradited person for the crime for which extradition was granted.85

In paragraph 3.2., it was already demonstrated that many States have indeed criminalised international child abduction in their national laws, which would meet the first requirement of double criminality in many (future) cases. Especially if the hypothetical situation of a

convention, whereby member States have to implement international parental child abduction as a crime in national law, materializes. The double criminality principle is also met if the custody laws in the different States do not align, because it is not up to any criminal court judge to decide on anything other than the factual breach of an existing custody arrangement. How that custody arrangement is established is not something a criminal court can decide on.

81_{Robert Cryer and others (n. 50), p. 98.} 82_{M. Cherif Bassiouni (n. 51), p. 4.}

83_{As was done in the The Convention against Torture (1948) in article 7, The International}

Convention against the Taking of Hostages (1979) in article 5, The Convention on the Safety of United Nations and Associated Personnel (1994) in article 14.

Malcolm N. Shaw (n. 67), p. 490-491.

84_{Robert Cryer and others (n. 50), p. 102.} 85_{Robert Cryer and others (n. 50), p. 99.}

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Furthermore, extradition is not possible if this would, most likely, be a breach of that

individual’s human rights.86

This would, for example, be the case when the individual would face a death penalty or life imprisonment in the State he or she is to be extradited to whereas

the State that is extraditing the individual has banned such punishments.87

For the exact procedure of extradition I would propose to make use of bilateral agreements and multilateral treaties on extradition already in place. The classic multilateral treatment in

Europe is the European Extradition Convention and its additional protocols.88

The European Arrest Warrant (EAW) has since replaced this convention. The EAW introduced a system in which a warrant in one State shall be recognized and enforced in all other Member States (of

the European Union).89

Furthermore, kidnapping is already an offense listed under the EAW, which entails that the verification of the double criminality clause no longer applies and the

offender can be easily arrested once located.90

3.3.3.2. Recognition and enforcement of foreign custody agreement and mutual assistance

There are two types of scenarios possible in the case of parental child abduction under a criminal law convention. The first scenario is that the parental child abductor takes his or her child to State A, is arrested in State A and gets extradited to State B to be prosecuted for the crime of child abduction. In this scenario a family court of State A will most likely also order the return of the child since his or her abducting parent will no longer stay in this foreign country. The child will therefore be returned to the State he or she was abducted from and the abducting parent will be prosecuted in the State he took the child from (State B).

The second scenario is the parental child abductor is arrested in State A but State A decides not to extradite but to prosecute the parental child abductor. The parental child abductor took the child from State B and State B most likely has information about the abduction, the custody arrangement and the parties involved (parents). State A can put out a request to State B for information which will be needed in the criminal proceedings. This request for mutual

86_{Robert Cryer and others (n. 50), p. 99.} 87_{Robert Cryer and others (n. 50), p. 103.} 88_{Robert Cryer and others (n. 50), p. 99.} 89_{Robert Cryer and others (n. 50), p. 100.}

90_{Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender}

procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision, article 2 §2.

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assistance in a criminal case shall be judged on a case-by-case basis. If State B grants the request of State A State B provides the information to State A. Mutual assistance, however, is

smothered by strict formalities and lengthy procedures.91

Steps have been taken to ensure more effective cooperation among States that could also help the case of international parental child abduction in the further. For example, the EU a principle of ‘mutual recognition’ of foreign judicial decisions as a cornerstone in legal operations between Member States was introduced. This has now been implemented in different instruments, among others the

European Arrest Warrant.9293

Mutual legal assistance is a system of request for assistance relating to a criminal

investigation, prosecution or trial. It could include the taking of witness statements, service of

documents, tracing of persons, information and more.94

Many States require an agreement, bilateral or multilateral, for mutual legal assistance, this may also be an ad hoc agreement for the specific case. The basic multilateral instrument for mutual assistance in Europe is the

“Convention on Mutual Assistance in Criminal Matters”,95_{this convention is also open to}

non-members of the Council of Europe.96

Regional conventions on mutual legal assistance also exist in the United States of America (OAS), the Caribbean (CARICOM), Western Africa (ECOWAS), Central Africa (ECCAS), Eastern Africa (IGAD), Southern Africa

(ASEAN), South East Asia (ASEAN) and South Asia (SAARC).97

Furthermore, mutual legal assistance is subjected to conditions or grounds of refusal, which are similar to the conditions and refusal grounds of extradition.

Whether or not such assistance is useful depends on the nature of criminal procedures in the requesting states. However, the biggest obstacle is that the process of mutual legal assistance is slow and plagued by practical problems due to ineffective implementation, indirect

communications and poor translations or language skills.98

91_{Robert Cryer and others (n. 50), p. 93.} 92_{Robert Cryer and others (n. 50), p. 93.}

93_{The European arrest warrant (EAW) is a “simplified cross-border judicial surrender procedure –}

for the purpose of prosecuting or executing a custodial sentence or detention order.”

European Commission, European Arrest Warrant, Europe E-Justice 11 September 2018 <https://e-justice.europa.eu/content_european_arrest_warrant-90-en.do> [accessed 17 December 2018].

94_{Robert Cryer and others (n. 50), p. 107-108.}

95_{Council of Europe, European Convention on Mutual Assistance in Criminal Matters, 12 June 1962,}

Strasbourg.

96_{Robert Cryer and others (n. 50), p. 108.} 97_{Robert Cryer and others (n. 50), p. 109.} 98_{Robert Cryer and others (n. 50), p. 110.}

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The recognition of foreign custody agreements is less controversial in international private law. In the case of no custody agreements, both parents may be considered to have equal

custody rights over their child.99

In the case where there already is a custody agreement, most States have already made preparations to recognise foreign custody orders. For instance, the European Union makes use of a regulation obliging all member states to recognize the

judgements of other European Union member states.100

This regulation has some exceptions in recognising foreign divorce agreements and judgements relating to parental

responsibility.101

There are seven grounds for non-recognition for judgements relating to parental responsibility such as non-recognition due to public policy, fundamental principles of procedure, where the decision was given in default of appearance, violation of the right to be heard and if the decision is irreconcilable with a later judgement relating to parental

responsibility given in the Member State in which recognition is sought or in another Member

State.102

In the U.S., States can make use of “The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)”. Left-behind parents who do not want to make use of The

Hague Convention can also enforce this act in order to establish the return of their child.103

3.4. Analysis of advantages and disadvantages of criminalising international parental child abduction

In terms of effectiveness, criminalising international parental child abduction could help the left-behind parent in localising his or her missing child. A missing person or wanted report could alert international organisations and national authorities as well as impose duties on States to apprehend the abducting parent as soon as he or she flees to territory of a State that has either signed this proposed convention or has a bilateral agreement with the State the child was taken from. This would also mean that a case may come before the court of the

99_{Sara E. Reynolds (n. 11), p. 467.}

100_{Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the}

recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, article 21.

recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, article 22 & 23.

recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, article 23.

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abducting parent sooner than with the use of The Hague Convention (where the left-behind parent has to wait until he or she knows where his child has been taken in order to start the proceedings).

If States would indeed cooperate and decide to criminalise international parental child abduction, this would probably have a great preventative impact. If abducting parents know their limitations of movement, the risk of a criminal record and the risk of losing their child due to a conviction, they might not be so eager to take their child across border without the consent of the left-behind parent.

However, there are also downsides to the use of criminal law in the case of international child abduction. The abduction alone can be traumatising for a child. Returning to its habitual residence without the abducting parents because the abducting parent would be facing a

criminal proceeding might not be in his or her best interest.104

It might be difficult to persuade States to sign a criminal law convention, which involves the extradition of nationals. Extradition of nationals is traditionally not done in any State. If the abducting parent flees to his or her State of birth he or she will be protected by this non-extradition pact. It then depends on the State whether or not they will prosecute their own national for the parental child abduction. A State could still decide to not value the retention or removal as “wrongful” or it could decide that it does not have enough evidence to

prosecute this crime. For example, in the Netherlands, the public prosecutor can decide if it

wants to prosecute an individual based on public interest.105

In Germany, on the other hand, the public prosecutor has no choice; if the prosecutor knows of any crime committed on German territory or by a German national and has sufficient evidence, it must bring this case

before the court.106

This could lead to much diversity in the case handling between States. As I mentioned in chapter 2, the difference in application of international agreements is a

downside of the Hague Convention. It is therefore important to avoid this as much as possible in the application of criminal law.

104_{Sara E. Reynolds (n. 11), p. 466.}

105_{Wetboek van Strafvordering, 1921, article 167 § 2.}

106_{Mevis, P.A.M. Capita Strafrecht : Een Thematische Inleiding. 7e [bew.] dr ed., Ars Aequi Libri,}

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4. Human rights and international parental child abduction

4.1. The best interest of the child (the UN Convention on the Rights of the Child)

The abduction of a child can be traumatising for the child in question. They are often led to believe that the left-behind parent has abandoned them or has passed away. Suddenly being cut-off from not just their parent but also their familiar environment has proven to cause

long-term psychological problems.107

The Convention on the Rights of the Child was adopted by the General Assembly of the

United States on the 20th

of November 1989. In short, the convention entails that in all actions

concerning children; the best interest of the child shall be a primary consideration.108

The Convention on the Rights of the Child (from now on: CRC) also provides for the

establishment of a Committee for the making of reports.109

They submit a report every two years to the General Assembly after hearing States’ reports. They can also recommend the General Assembly to undertake specific studies relating to the rights of the child, make

suggestions and general recommendations.110

The Hague Convention in part already implements CRC articles 11 and 35. Article 11 of the CRC urges State to “take measures to combat the illicit transfer and non-return of children abroad”, article 35 of the CRC urges States to “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, … , children for any purpose or in any form”.111

The UN Committee on the Rights of the Child recommends CRC States to become Party to the 1980 Hague Convention as a means by which CRC Article 11 may be practically

implemented.112

107_{Sara E. Reynolds (n. 11), p. 466.} 108_{Malcolm N. Shaw (n. 67), p. 238.}

109_{UN General Assembly, Convention on the Rights of the Child, 20 November 1989, article 43.} 110_{Malcolm N. Shaw (n. 67), p. 238-239.}

111_{UN General Assembly, Convention on the Rights of the Child, 20 November 1989, articles 11 and}

35.

112_{HCCH, Outline of the Convention on Civil Aspects of International Child Abduction, May 2014}

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4.1.1. Best interest of the Child and The Hague Convention

The Hague Convention tries to achieve a balance between the legitimate interests of the parents and the best interest of the child. In principle, according to The Hague Convention, the interest of the child will be served best when he or she is returned as soon as possible. This applies with regards to the best interest of the specific child concerned as well as to the

best interest of children in general, and also with regard to the rules on burden of proof.113

In the Preamble of The Hague Convention it is mentioned that the relevance of the child’s wishes are of paramount importance. However, this should not be read as to mean that an individual child’s welfare is of paramount important in a Hague return application. The Preamble speaks of the “interests of children” generally, not in the interest of the particular

child before court”, according to the Canadian Supreme Court.114_{If the individual child’s}

interest is not of paramount importance when determining a return application the question arises whether or not The Hague Convention is compatible with article 3 of the CRC. Article 3 of the CRC obliges States to primarily consider the best interests of the child in all actions concerning children “whether undertaken by public or private social welfare institutions,

courts of law, administrative authorities or legislative bodies … ”.115

However, according to the German Constitutional Court The Hague Convention is compatible with the UN Convention on the Rights of the Child. In the case of G and G v. Decision of OLG Hamm it was decided that by providing admittedly limited exceptions to the obligation to return, The Hague Convention does pay sufficient regard to the interest of each child especially as it is not determining the merits of any custody dispute but rather the forum in

which that dispute must be determined.116

National courts are under an obligation not to return the child if it does not serve the child’s

best interest.117

This does not mean that a detailed assessment of the entire situation must be made in every case. Courts simply must genuinely take into account factors that could constitute an exception to the return under articles 12, 13 and 20 of The Hague Convention.

113_{Dagmar Coester-Waltjen (n. 38), p. 60.} 114_{Nigel Lowe (n. 18), p. 77.}

117_{Neulinger and Shuruk v. Switzerland (Application No 41615/07). See also: Šneersone and}

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This assessment must be made in the best interest of the child but the proceeding must also be

handled with speed.118

4.1.2. Best interest of the Child and International Criminal Law

As this chapter is based on a hypothetical situation in which international parental child abduction is governed by an international criminal law convention, it will be a difficult assessment to make without any case law. The following paragraph will discuss whether a criminal law convention is compatible with article 3 of the UN convention on the Rights of the Child.

As mentioned in paragraph 4.2, the German Constitutional Court decided in the G and G v. Decision of OLG Hamm-case that the Convention was compatible with article 3 of the CRC since it is not deciding on the custody dispute, but on how the dispute must be determined. The idea of the use of criminal law in international parental child abduction cases is to refrain judges from making any assessments on the custody agreement other than whether there has been a violation of the custody agreement in the case at hand.

In the introduction of chapter three it is explained that international criminal law focuses on the prosecution of violators of prohibitions; this leaves no room for victims in the

proceedings. In the case of international parental child abductions, the victim is the child who has been ripped from the care of one of his parents and the left-behind parent who no longer has access to his or her child. This means that when a judge has to decide on the merits of the case he only has to judge on whether the removal or retention of the child was wrongful. They will not have to pass judgement on whether or not the decision is harmful for the interest of the child. However, ECHR argued that if the abducting parent would be facing criminal procedures on return it is not in the best interest of the child to execute a return order. The ECHR has provided case law in which they stated that this could be an argument for not

118_{Thalia Kruger, ‘Adžić v. Croatia: The difficult task that child abduction brings’,}

(Strasbourgobservers, 11 May 2015) <https://strasbourgobservers.com/2015/05/11/adzic-v-croatia-the-difficult-task-that-child-abduction-brings/> [accesssed 20 November 2018]. See also, X. v. Latvia (Application No. 27853/09).

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executing a return order in the case where the abducting parent is also the only person to

whom the child relates.119

If a judge decides that the removal or retention was indeed wrongful and the abducting parent is sentenced, the child can then be returned to the left-behind parent since it would be in his or her best interest to be in the presence of the non-convicted left-behind parent while the

abducting parent deals with the consequences of his criminal record. In that way it would seem that the left-behind parent thus has a better claim to retrieving his custody over the child back in due time because of the CRC. However, this return can only be facilitated through family law (since the child is not part of the proceedings of his abducting parent as a victim). When it comes to the principle of the best interest of the child it seems that it would be best if criminal law and family law would work side by side.

There is also room for debate whether a parent can be acting in the best interest of the child by unilaterally deciding to take this child across border. This is however a discussion that will not be addressed in this research since it is clear that The Hague Convention and the CRC are not creating obligations for individuals, but for State governments.

4.2. European Convention on Human Rights Article 8: the right to family life.120

Within the European Union both the left-behind parent as well as the abducting parent can initiate a procedure before the ECHR if they feel that their human rights have not been protected during (for example) the The Hague Proceedings. There are several cases in which this scenario has come into play. I will discuss two of these cases in the paragraphs below.

4.2.1. Dissenting opinion from Judge Dedov in the case of Adzic v. Croatia:

According to Judge Dedov in his dissenting opinion on the case of Adziv v. Croatia the speedy Hague proceedings are not suitable for situations in which the family has broken up and where the abducting parent is in a vulnerable situation. In this case the situation is like most parental child abduction cases; the mother and father of the child are situated in the U.S.. After a vacation in Croatia over the summer, the mother decides to stay in Croatia with the

119_{Neulinger and Shuruk v. Switzerland (Application No 41615/07), §149.}

120_{Meaning article 8 right to private life, family life, correspondence and home, of the European}

International Parental Child Abduction: shifting focus from private law remedies to public law remedies